I 


CO 
33 

§ 


/r? 


.^E-UNIVERS/A 


FAMOUS     CASES 


CIRCUMSTANTIAL  EVIDENCE. 


WITH  AN  INTRODUCTION 


THEORY   OF    PRESUMPTIVE    PROOF. 

BY 

S.  M.   PHILLIPS, 

AUTHOR    OF    "PHILLIPS    ON    BVIDENCK." 


NEW-YORK: 
JAMES    COCKCROFT    &    CO., 

LAW  PUBLISHERS,  aj  GREAT  JONES  STREET. 
I873- 


TOBITT  *  BUNCE, 

AMD  STXKIOTTPBBS, 

W  Fulton  St.,  N.  Y. 


O- 


CONTENTS. 


INTRODUCTION 


PAOS 
vii-xxzix 


I. 

II. 
III. 
IV. 

V. 
VI. 


CASE 
CASE 
CASE 
CASE 
CASE 
CASE 
CASE  VII. 
CASE  VIII. 
CASE  IX. 
CASE  X. 
CASE  XI. 
CASE  XII. 
CASE  XIII. 
CASE  XIV. 
CASE  XV. 
CASE  XVI. 
CASE  XVII. 


1 
4 
11 
14 
31 
84 
45 
47 
50 
53 
57 
65 
73 
78 
85 
89 
97 


CONTENTS. 


Fua 

CASE  XVIII.  ..  ..  ..  ..  ..113 

CASK     XIX 117 

CASK       XX.  ..  ..  ..  ..  ..125 

CASK     XXI.  ..  ..  ..  ..  ..129 

CASK    XXIL  ..  .,  ..  ..  ..132 

CASK  XXIII.  ..'         136 

CASE   XXIV.  ..  ..  ..  ..  ..      139 

CASK    XXV ..  ..141 

CASK   XXVI.  ..  ..  ..  ..  ..144 

CASK  XXVII.  149 


THE    THEORY 


PRESUMPTIVE    PROOF. 


THEKE  is  no  branch  of  legal  knowledge  which  is  of  more 
general  utility,  than  that  which  regards  the  rules  of  evidence. 
The  first  point  in  every  trial,  is  to  establish  the  facts  of  the 
case ;  for  he  who  fails  in  his  proof,  fails  in  every  thing. 
Although  the  jurists  hold  the  law  to  be  always  fixed  and 
certain,  yet  the  discovery  of  the  fact,  they  say,  may  deceive 
the  most  skillful.  No  work  has  as  yet  appeared  in  the  English 
language  on  the  theory  of  evidence ;  and  the  nature  of  circum- 
stantial evidence  has  been  still  less  inquired  into.  The  object 
of  the  present  Essay  is  to  inquire  into  some  of  the  more 
general  principles  of  legal  proof,  and  particularly  into  that 
species  of  proof  which  is  founded  on  presumptions,  and  is 
known  to  the  English  lawyer  by  the  name  of  circumstantial 
evidence. 

Evidence  and  proof  are  often  confounded,  as  implying  the 
same  idea ;  but  they  differ,  as  cause  and  effect.  Proof  is  the 
legal  credence  which  the  law  gives  to  any  statement,  by 
witnesses  or  writings ;  evidence  is  the  legal  process  by  which 
that  proof  is  made.  Hence,  we  say,  that  the  law  admits  of  no 
proof  but  such  as  is  made  agreeably  to  its  own  principles. 

The  principles  of  evidence  are  founded  on  our  observations 
on  human  conduct,  on  common  life,  and  living  manners :  they 
are  not  just  because  they  are  rules  of  law;  but  they  are  rules 
of  law  because  they  are  just  and  reasonable. 

It  has  been  found,  from  common  observation,  that  certain 
circumstances  warrant  certain  presumptions.  Thus,  that  a 


viii  IN  TROD  UCTION. 


mother  shall  feel  an  affection  for  her  child, — that  a  man  shall 
be  influenced  by  his  interest, — that  youth  shall  be  susceptible 
of  the  passion  of  love, — are  laws  of  our  general  nature,  and 
grounds  of  evidence  in  every  country.  Of  the  two  women 
who  contended  for  their  right  to  the  child,  she  was  declared 
to  be  the  mother  who  would  not  consent  to  its  being  divided 
betwixt  them.  When  Lothario  tells  us  that  he  stole  alone,  at 
night,  into  the  chamber  of  his  mistress, "  hot  with  the  Tuscan 
grape,  and  high  in  blood ! "  Ccetera  quis  nescit  ? 

As  the  principles  of  evidence  are  founded  on  the  observa- 
tions of  what  we  have  seen,  or  believed  to  have  been  passing  in 
real  life,  they  will  accordingly  be  suited  to  the  state  of  the  society 
in  which  we  live,  or  to  the  manners  and  habits  of  the  times. 
The  following  passage,  in  the  excellent  memoirs  of  Philip  de 
Comincs,  I  believe  to  be  perfectly  true,  because  it  is  confirmed 
by  other  accounts  of  the  general  state  of  manners  at  the 
period  when  he  wrote. 

Louis  XL  distributed,  he  asserts,  for  corrupt  purposes, 
sixteen  thousand  crowns  among  the  King  of  England's 
officers  that  were  about  his  person,  particularly  to  the 
chancellor,  the  master  of  the  rolls,  the  lord  chancellor,  &c.* 

The  truth  of  this  narrative  has  never  been  called  in 
question,  because  it  is  given  by  an  historian  of  great  gravity 
and  character,  and  is  illustrated  by  the  manners  of  the  age ; 
yet  although  the  author  says  that  his  design  in  writing  of 
these  transactions,  is  to  show  the  method  and  conduct  of  all 
human  affairs,  by  the  reading  of  which  such  persons  as  are 
employed  in  the  negotiation  of  great  matters,  may  be  in- 
structed how  to  manage  their  administrations,  we  should  find 
it  difficult  to  give  credence  to  such  facts,  if  related  of  any 
modern  lord  high  chancellor  or  officer  of  state  of  the  court  of 
England.  Thus,  the  same  presumptive  evidence  that  is  good 
as  to  the  court  of  Edward  IV.  and  the  era  of  1477,  is 
altogether  extravagant  if  applied  to  the  court  of  George  III. 
and  the  beginning  of  the  19th  century. 

*  V.  2.  p.  7. 


2NTROD  UCTION.  ix 

The  oration  of  Cicero  for  Cluentius,  exhibits  evidence  of 
'corruption  which  can  only  be  credited  from  our 
general  knowledge  of  Eoman  manners  at  the  era  of  the  facts 
which  he  describes. 

The  King  of  Siam  gave  credence  to  everything  which  a 
European  ambassador  told  him,  as  to  the  circumstances  and 
condition  of  Europe,  until  he  came  to  acquaint  him,  that  the 
rivers  and  sea  were  occasionally  made  so  hard,  by  the  cold, 
that  people  could  walk  on  them ;  but  this  story  he  totally 
disbelieved  and  rejected,  as  entirely  repugnant  to  every  thing 
which  he  had  either  seen  or  heard;  and  the  ground  of  his 
disbelief  was  perfectly  rational. 

A  similar  principle  sways  our  belief  in  respect  to  the  acts 
of  individuals,  as  arising  in  the  society  and  period  in  which 
we  live.  We  always  refer  the  credibility  of  the  case  to  what 
has  fallen  within  our  own  observation  and  experience  of  men 
and  things.  "We  readily  give  credence  to  acts  of  common 
occurrence,  and  are  slow  in  yielding  our  assent  to  the 
existence  of  new  and  unlocked  for  events.  When  a  wretch, 
at  no  distant  period,  in  affluent  circumstances,  was  accused  of 
having  stolen  some  sheets  of  paper  in  a  shop,  the  judges 
admitted  him  to  bail  against  evidence,  because  the  charge  was 
altogether  unlikely  in  one  of  his  condition  in  life.  From 
these  instances,  we  may  safely  infer  that  the  principles  for  our 
believing  or  disbelieving  any  fact,  are  rather  governed  by  the 
manners  and  habits  of  society,  than  by  any  positive  rule. 
The  writers  on  the  general  law  of  evidence,  such  as  Mascardus 
and  Menochius,  have  accordingly  declared  that  all  proof  is 
arbitrary,  and  depends  on  the  feelings  of  the  judges. 

There  are  two  species  of  presumptive  proof:  the  first  is  the 
presumption  of  the  law,  and  the  second  the  presumption  of 
the  judge,  juryman,  or  trier. 

The  presumption  of  the  law  is  that  conclusion  which  the 

law  attaches  to  a  certain  species  of  guilt.     Thus,  that  he  who 

,  has  deliberately  and  willfully  killed  another,  has  done  so  from 

malice,  is  a  presumption  of  the  law.    But  how  far  he  who  has 


IN  TROD  UCTION. 


been  found  with  the  sword  in  his  hand  by  the  body  of  the  man 
just  killed,  did '  or  did  not  give  the  mortal  stroke,  is  a  pre- 
sumption to  be  made  by  the  jury,  and  is  not  determinable  by 
any  positive  rule  of  law. 

The  presumption  of  the  law,  Montesquieu  .observes,  is 
preferable  to  that  of  man.  The  French  law  considers  every 
act  of  a  merchant,  during  the  ten  days  preceding  his  bank- 
ruptcy, as  fraudulent;  this  is  the  presumption  of  the  law. 

The  modern  French  code  has  wisely  decreed,  that  when 
the  law,  on  account  of  circumstances,  shall  have  deemed 
certain  acts  fraudulent,  proof  shall  not  be  admitted  that  they 
were  done  without  fraud.  And  in  our  own,  as  in  every  other 
system  of  legislation,  a  variety  of  qualities  are  presumed  as  to 
different  persons  and  things,  against  which  no  proof  shall  be 
allowed.  Certainty  is  the  great  object  of  legislation,  and 
nothing  could  be  established  but  by  the  determination  of 
some  thing  as  already  fixed. 

All  proof  is  in  reference  to  some  fact  already  known  and 
admitted, — what  is  doubtful  must  be  proved  in  reference  to 
what  is  true. 

The  following  rules,  by  Quintilian,  proceed  upon  this 
principle,  but  they  are,  perhaps,  rather  curious  than  useful : — 
One  thing  is,  because  another  is  not :  it  is  day,  therefore  it  is 
not  night.  One  thing  is,  therefore  another  is:  the  sun  is 
risen,  therefore  it  is  day.  One  thing  is  not,  therefore  another 
is :  it  is  not  night,  therefore  it  is  day.  One  thing  is  not, 
therefore  another  is  not :  he  is  not  rational,  therefore  not  a 
man. 

Evidence  is  divided  into  positive  and  presumptive.  Positive 
evidence  is  where  the  witness  swears  distinctly  to  the  com- 
mission of  the  act  or  crime  which  forms  the  subject  of  the 
trial.  Presumptive  evidence  is  that  conclusion  which  the  jury 
draw  for  themselves,  from  circumstances  or  minor  facts,  as 
sworn  to  by  the  witnesses. 

Presumptions  are  consequences  drawn  from  a  fact  that  is 
known  to  serve  for  the  discovery  of  the  truth  of  a  fact  that  is 


IN  TROD  UCTION.  xi 


uncertain,  and  which  one  seeks  to  prove.  But  no  presump- 
tion can  be  made  but  on  a  fact  already  known  and  ascertained. 
Thus,  if  the  stains  of  blood  on  the  coat  of  one  tned  for 
muider,  are  to  be  presumed  as  evidence  of  his  guilt,  the  fact 
of  the  stains  being  occasioned  by  blood  must  be  first  distinctly 
ascertained ;  the  one  presumption  cannot  be  made  to  aid  the 
other. 

The  stains  are  not  to  be  presumed  from  blood  because  he 
is  presumed  to  have  been  the  murderer ;  nor,  on  the  other 
hand,  is  he  to  be  believed  the  murderer,  because  the  stains  are 
believed  to  be  from  blood ;  for  this  is  reasoning  in  a  circle,  and 
returning  back  to  the  point  whence  the  argument  commenced- 
In  laws,  the  arguments  should  be  drawn  from  one  reality  to 
another,  and  not  from  reality  to  figure,  or  from  figure  to 
reality. 

Whilst  dwelling  on  the  general  head  of  proof,  it  may  be 
proper  to  inquire  in  what  does  proof  naturally  consist.  Is 
one  witness,  according  to  the  principles  of  natural  reason, 
sufficient  to  give  legal  credence,  or  are  two  witnesses  neces- 
sary ? 

The  Roman  or  civil  law  has  required  two  witnesses  to  each 
separate  fact. 

But  this  principle  did  not,  perhaps,  arise  from  the  dictates 
of  legal  prudence,  but  was  borrowed  from  a  text  of  Scripture : 
"  In  the  mouth  of  two  or  three  shall  the  truth  be  established." 
The  text  was  meant  merely  to  carry  reference  to  certain 
circumstances  incident  to  the  Christian  religion.  But  the 
principles  of  religion  are  happily  founded  on  higher  evidence 
than  is  necessary  to  guide  men  in  the  business  of  common 
life. 

The  incidents  of  commerce,  and  the  daily  intercourse  of 
mankind  require  not  only  that  moral  certainty  which  we  are 
warranted,  from  general  observations,  to  confide  in.  It  were 
superfluous  to  show  how  difficult  it  must  be,  nay,  how  impos- 
sible, often,  to  prove  a  crime  by  two  witnesses.  The  absurdity 
and  inconveniency  of  the  rule  has  been  attended  with  that 


xii  IN  TROD  UCTION. 


effect  which  will  always  attend  an  inconvenient  law ;  a  variety 
of  shifts  have  been  invented  to  evade  it.  One  witness  is  held 
sufficient  to  a  fact  of  a  general  nature,  and  half  proofs  have 
been  established. 

If  the  rules  of  evidence  are  founded  on  the  principles  of 
human  nature ;   if,  like  other  rules,  their  fitness  is  to  be 
judged  of  by  their  practical  utility,  it  must  be  admitted  that 
a  proof  by  one  witness,  or  by  circumstances,  in  certain  cases,  • 
is  good  and  reasonable. 

It  is  true,  that  by  the  English  law  of  high  treason,  that  is, 
by  the  25th  of  Edward  the  Third,  two  witnesses  are  required 
to  convict  a  prisoner  of  the  charge:  that  is  to  say,  one 
witness  to  one  fact,  and  another  to  a  different  fact,  of  the 
same  species  of  treason,  shall  be  held  to  be  two  witnesses 
within  the  meaning  of  the  statute.  But  this  law  was  passed 
for  the  security  of  the  subject,  and  to  guard  against  the  over- 
bearing influence  of  the  crown  in  state  prosecutions ;  and  it 
is  no  doubt  in  reference  to  crimes  against  the  state,  that 
Montesquieu  has  made  the  following  observation  : — "  Those 
laws  which  condemn  a  man  to  death,  on  the  deposition  of  a 
single  witness,  are  fatal  to  liberty.  In  right  reason  there 
should  be  two ;  because  a  witness  who  affirms,  and  the 
accused  who  denies,  make  an  equal  balance,  and  a  third  must 
incline  the  scale."* — Be'sides,  the  observation  is  made  by  a 
writer  speaking  in  reference  no  doubt  to  the  civil  law,  where 
there  is  no  jury  to  estimate  the  weight  due  to  the  evidence. 
In  the  present  Essay,  it  is  not  meant  to  inquire,  what  crimes 
should  be  liable  to  the  punishment  of  death,  and  what  not ; 
it  is  only  proposed  to  inquire,  what  degree  of  proof  is  sufficient 
to  satisfy  the  mind  of  the  commission  of  the  act.  The  prin- 
ciple in  law  is  clear,  that  the  guilt  is  neither  increased  nor 
diminished  by  the  fullness  or  defect  of  the  proof. 

When,  it  will  be  asked,  shall  a  proof  be  said  to  complete  ? 
The  answer  must  be, — when  the  judges  are  satisfied;  if  the 

*  Spirit  of  Laws,  b.  12,  c.  3. 


IN  TROD  UCTION. 


process  be  regular.  For  what  is  implied  by  the  term  to 
prove  ? 

The  jurists  acquaint  us,  that  to  prove  is  to  convince  the 
judge. 

Probare  est  fidem  facere  judici.  And  this  is  the  meaning 
assigned  to  the  term  by  the  English  language.  The  common 
saying,  as  used  in  argument,  where  a  fact  is  disputed, — 7  will 
prove  this  to  you, — I  will  convince  you  of  this, — I  will  satisfy 
you  on  this  head, — sufficiently  show,  that  to  prove,  only 
implies,  to  convince  another  of  the  truth  of  our  assertions. 

The  proof  must  be  held  to  be  complete,  on  the  part  of  the 
prosecutor,  when  he  produces  the  best  evidence  which  the 
case  will  afford,  and  such  as  shall  induce  the  judges  to  believe 
the  commission  of  the  fact,  until  it  is  refuted  by  opposite 
evidence  on  the  part  of  the  defendant  :*  one  story  is  good, 
until  another  is  told.  "Where  the  evidence  is  believed,  and  is 
sufficient  to  account  for  the  fact,  no  other  proof  is  necessary. 

Hypothetical  reasonings  are  susceptible  of  the  highest 
degree  of  evidence,  when  the  hypothesis  explains  many  pheno- 
mena, and  contradicts  none  ;  and,  when  every  other  hypothesis 
is  inconsistent  with  some  of  the  phenomena.  And  this  is  the 
principle  on  which  the  philosophy  of  Sir  Isaac  Newton,  as  to 
the  motion  of  the  heavenly  bodies,  is  founded. 

Where  there  is  no  reason,  not  to  believe ;  that,  alone,  is  a 
reason  for  believing  the  evidence  of  our  senses. 

The  senses  are  ever  true,  but  the  understanding  often 
reasons  ill.  It  is  not  proper  to  reject  a  probable  opinion, 
without  establishing  a  better  in  the  room  of  it. 

But  these  remarks  are,  after  all,  but  barren  generalities ; 
and  the  observation  of  the  great  writers  on  this  subject,  will 
too  often  be  found  to  be  just, — that  alljaroof  is  arbitrary,  and 
cannot  be  reduced  to  positive  rules.  It  happens,  sometimes, 

*  Indeed,  the  proof  is  complete,  on  the  part  of  the  prosecution,  when 
the  best  evidence  has  been  produced.  That  is  to  say,  the  proof  should 
be  made  to  rest  there,  whatever  the  probable  effect  of  the  evidence  on 
the  court  may  or  may  not  be. 


xiv  INTR  OD  UCTION. 


that  the  most  probable  things  are  false;  for,  if  they  were 
always  separated  from  falsehood,  they  would  be  certain,  and 
not  probable.  Or,  as  rendered  by  some  other  translators, — 

The  most  probable  things,  sometimes  prove  false ;  because, 
if  they  were  exempt  from  falsity,  they  would  not  be  probable, 
but  certain.* 

It  is  likely  several  things  may  happen,  which  are  not 
likely. 

The  ancient  Romans  were  so  sensible  of  the  uncertainty  of 
evidence,  and  the  difficulty  of  always  ascertaining  the  guilt  of 
the  prisoner,  that  their  form  of  judgment  (or  verdict  of  the 
jury  as  we  should  style  it),  merely  expressed,  that  he  appeared 
to  have  done  \i,fecisse  videtur. 

It  is  not  the  fact,  always,  that  constitutes  the  guilt,  but 
the  opinion  of  the  judge.  "  What  have  the  laws  ordered  in 
such  a  case  ?  "  was  asked  of  an  advocate  of  Byzantium :  "  What 
I  please,"  was  the  answer.f 

The  end  of  a  proof,  is  to  establish  the  matter  in  debate- 
In  every  case,  whether  by  direct  proof,  or  by  that  of  circum- 
stantial evidence,  the  jury  ought  always  to  be  fully  satisfied  of 
the  guilt  of  the  prisoner,  before  they  return  such  a  verdict. 
It  is  immaterial  what  the  proof  is,  if  it  is  not  believed,  and 
brings  conviction  to  the  mind  of  the  jury. 

It  has  been,  of  late  years,  a  favorite  theme,  to  descant  upon 
the  certainty  of  circumstantial  evidence.  The  practice  of  the 
law,  like  other  things,  has  its  prejudices ;  and  the  name  of  an 
eminent  man,  the  success  of  a  particular  trial,  will  sometimes 
give  sanction  to  a  false  theory. 

Circumstances,  it  is  said,  cannot  lie.  This  is  very  true  • 
but  witnesses  can.  And  from  whom  do  you  obtain  circum- 
stances, but  from  witnesses  ?  Thus,  you  are  liable  to  two 
deceptions :  first,  in  the  tale  told  by  the  witness  ;  and,  secondly, 
in  your  own  application  of  those  circumstances.  Where  a  fact 
is  positively  sworn  to,  as  seen  by  the  witness,  the  conclusion 

*  Aristotle,  Vide  Bayle  Diet.  Agathon. 
f  Travels  of  Anacharsis,  v.  4.  p.  400. 


IN  TROD  UCTION.  XY 

or  inference  to  be  drawn  from  it,  is  generally  obvious.  But, 
where  the  inference  is  to  be  drawn  from  a  long  train  of  cir- 
cumstances, it  is  a  matter  of  judgment ;  it  is  an  exercise  of  the 
understanding ;  and,  as  all  men  do  not  understand  alike,  very 
opposite  conclusions  are  sometimes  drawn  from  the  same 
shades  of  probability. 

When  the  ancient  prudence  of  the  law  denied  to  a  prisoner 
the  benefit  of  counsel,  on  a  capital  charge,  to  plead  for  him, 
it  was  understood  that  the  proof  should  be  so  clear,  as  to  be 
self-evident  to  the  jury.  It  was  understood  that  the  judge 
should  be  counsel  for  the  prisoner ;  that  is  to  say,  that  he 
should  see  that  the  process  was  fair  and  regular,  and  that  no 
Undue  advantages  were  taken ;  but  that  process  is  vitiated  in 
As  vital  part,  when  a  false  principle  is  introduced. 

"  A  presumption,  which  necessarily  arises  from  circum- 
stances, is  very  often  more  convincing,  and  more  satisfactory, 
than  any  other  kind  of  evidence  ;  it  is  not  within  the  reach 
and  compass  of  human  abilities  to  invent  a  train  of  circum- 
stances, which  shall  be  so  connected  together  as  to  amount  to 
a  proof  of  guilt,  without  affording  opportunities  of  contra- 
dicting a  great  part,  if  not  all,  of  these  circumstances." 
(CJiarge  of  Mr.  Justice  JSullen,  on  the  trial  of  Captain 
Donnellan.) 

I  deny  the  position.  I  maintain,  that  the  theory  is  repug- 
nant to  the  received  principles  of  jurisprudence ;  as  known  to 
the  best  foreign  writers  on  the  law  of  evidence.  I  maintain, 
that  it  is  not  warranted  by  experience, — the  greatest  proof  of 
every  rule,  the  proof  of  proofs.  And  I  may  further  assert,  that 
it  is  new  to  the  practice  of  the  English  law. 

First,  I  shall  show,  that  the  theory  is  repugnant  to  the 
received  principles  of  jurisprudence,  as  known  to  the  best 
foreign  writers,  on  the  law  of  evidence. 

The  first  to  whom  I  shall  refer  is  Mascardus,  a  writer  of 
great  eminence  on  the  general  theory  of  proof;  regarding 
which,  he  has  published  four  volumes. 

"  Proof  by  evidence  of  the  thing,  is  superior  to  every  other ; 


xvi  INTRODUCTION. 


and  of  all  different  kinds,  none  is  so  great  as  that  which  is 
made  by  witnesses  deposing  to  what  they  have  seen/'*  ' 

"  Proof  by  presumption  and  conjectures,"  he  observes  in 
another  place,  "  cannot  be  called  a  true  and  proper  proof."  f 

The  work  of  Menochius  is  entirely  dedicated  to  the  doctrine 
of  presumptions  or  circumstantial  evidence ;  and  although  he 
displays  the  partiality  for  this  species  of  proof,  which  is  natural 
to  one  who  has  dedicated  his  attention  to  a  particular  subject' 
yet,  in  the  very  first  chapter  of  his  work,  he  observes,  that 
"  the  proof  or  credence  which  arises  from  the  testimony  of 
witnesses,  is  superior  to  any  other."J  ' 

I  shall  not  think  it  necessary  to  load  this  Essay  with  quota- 
tions from  other  writers  on  the  civil  law ;  the  above  two 
possess  the  most  eminent  authority  of  any  on  the  subject  of 
evidence.  But  the  same  opinion  is  expressed  by  every  other 
author,  whom  I  have  had  occusion  to  consult :  no  one  has 
maintained  the  absurd  position,  that  circumstances  cannot 
lie ;  or,  that  conjectural  proof  is  superior  to  that  of  ocular 
demonstration. 

Secondly.  I  maintain,  that  it  is  not  warranted  by  expe- 
rience,— the  great  test  of  every  rule. 

It  might  appear  invidious,  to  carry  reference  to  cases  of 
modern  occurrence,  where  fatal  mistakes  have  been  discovered 
of  persons  too  hastily  convicted  on  mere  circumstantial 
evidence ;  the  history  of  the  judicial  proceedings  in  this  and 
every  other  country  will  afford  too  many  illustrations. 

Some  cases  of  this  kind  will  be  found  well  illustrated  in 
Lord  Chief  Justice  Hale's  Pleas  of  the  Crown,  vol.  2,  p.  289. 

Various  instances  occur,  of  the  fatal  error  being  too  late 

*  Probatio  per  evidentiam  rei  omnibus  est  potentior,  et  inter  omnes 
ejus  generis  major  est  ilia,  quae  fit  per  testes  de  visu.  (Macardus  de 
Probationibus,  v.  1,  q.  3,  n.  8. 

£.  \  Probatio  per  presumtiones  et  conjectures  dici  non  potest  vera  et 
propria  probatio. 

Q  J  Probatio  seu  fides  quae  testibus  fit,  cceteria  excellet.  (Menochiua 
de  Prsesumptionibus,  1.  1,  q.  1.) 


IN  TROD  UCTION.  xvii 


discovered;    but  who  can  say,  how  many  instances  have 
occurred,  where  the  mistake  has  never  been  discovered  ? 

It  has  of  ten  happened,  that  the  real  murderer  has  confessed 
the  fact  for  which  the  innocent  man  has  suffered ;  but,  as  real 
murderers  do  not  always  confess  when  innocent  men  suffer, 
it  is  impossible  to  say  to  what  length  this  dangerous  doctrine 
may  have  been  carried. 

Thirdly.  I  have  further  to  observe,  that  this  principle  is 
new  to  the  practice  of  the  English  law. 

That  great  collection  of  criminal  cases,  which  bears  the 
name  of  the  State  Trials,  contains  a  great  fund  of  criminal 
knowledge. 

The  opinions  of  the  judges,  however,  as  expressed  in  state 
prosecutions,  are  not  always  to  be  regarded  as  law,  until  we 
reach  the  period  of  tbe  revolution. 

New  enactments  of  the  legislature  have  changed  some  part 
of  the  law,  and  the  improving  experience  of  time  has  altered 
others.  The  first  notice  to  be  found  of  this  principle,  in  sound 
and  wholesome  times,  is  on  the  trial  of  Miss  Blandy,  for 
poisoning  her  father, — before  Mr.  Baron  LEGGE,  in  1752. 

The  judge,  in  summing  'up  the  evidence  to  the  jury, 
declares  that  circumstances  are  more  convincing  and  satisfac- 
tory than  any  other  kind  of  evidence ;  because  "facts"  he 
says,  "  cannot  lie"* 

That  facts  cannot  lie,  is  sound  logic,  no  doubt.  Men  only 
lie.  But  as  we  only  know  facts  through  the  medium  of 
witnesses,  the  truth  of  the  fact  depends  always  upon  the  truth 
of  the  witness;  so  that,  although  he  furnishes  us  with  a 
thousand  facts,  it  is  of  no  consequence,  if  he  himself  is  un-  J 
sound. 

The  next  occasion  on  which  this  doctrine  appears,  is  on 
the  celebrated  trial  of  Captain  Donnellan,  in  1781,  before  Mr. 
Justice  BULLER,  in  the  passage  already  quoted.  But  he  has 
altered  the  position  a  little,  by  shifting  the  criterion  from  facts 

*  State  Trials,  v.  10,  p.  32. 


xviii  INTRODUCTION. 


to  circumstances.  Facts,  before,  were  the  standard  of  truth; 
circumstances  are  now  made  to  be  so.  For  circumstances 
cannot  lie.  But  what  else  are  circumstances  but  facts,  or 
minor  facts ;  and  I  must  take  the  liberty  to  say,  that  circum- 
stances are  still  more  liable  to  deceive,  or  to  lead  to  deception, 
than  even  facts.  A  fact  being  more  an  object  of  sight,  is 
easier  apprehended  by  the  senses  than  a  circumstance ;  which, 
from  its  triviality,  often  escapes  the  attention  altogether,  is 
misapprehended,  or  assigned  to  a  wrong  cause. 

The  trial  in  question,  will  afford  a  most  unparalleled 
illustration  of  the  truth  of  this  observation ;  it  will  show  the 
fallibility  of  circumstances,  and  the  very  opposite  conclusions 
which  different  men  will  draw  from  the  same  appearances. 

I  shall  here  give  the  general  shape  of  the  case — 

If  shape  it  might  be  called,  which  shape  had  none, 
Or  substance  might  be  called,  which  shadow  seemed. 

Sir  Theodosius  Boughton,  a  young  man  of  a  delicate  con- 
stitution, had  sent  to  a  country  apothecary's  shop  for  a 
draught  of  medicine.  Different  vials  appear  to  have  been  in 
his  chamber,  at  the  time  he  took  the  draught ;  which  was 
intended  to  be  a  composition  of  rhubarb,  jalap,  and  lavender 
water. 

He  was  suddenly  seized  with  convulsions  in  his  stomach, 
and  foaming  at  the  mouth  ;  and  expired  before  he  could  give 
any  explanation.  Qn  rinsing  one  of  the  vials,  the  sediment 
gave  the  effluvia  of  laurel  water,  which  is  known  to  be  a  strong 
poison.  Convulsions,  foaming  at  the  mouth,  and  sudden 
death,  are  the  natural  effects  of  that  liquid. 

But  every  man  who  dies  in  that  way,  is  not,  therefore, 
poisoned.  The  apoplexy  will  produce  the  sama  effects  and 
appearances :  of  which  disease,  the  father  of  the  young  man 
was  known  to  have  died.  No  evidence  whatever  was  produced 
as  to  the  existence  of  the  laurel  water. 

Captain  Donnellan,  the  brother-in-law  of  Sir  Theodosius, 


IN  TROD  UCTION.  xix 


was  living  in  his  house  at  the  time  of  the  accident.  He  was 
the  next  heir  to  the  estate,  and,  accordingly,  the  person  who 
had  the  most  immediate  interest  in  his  death.  He  certainly 
betrayed  some  uneasiness  on  the  event,  and  appearances  indi- 
cated that  he  was  afraid  of  being  suspected  as  the  author  of 
the  mischief.  But,  if  it  was  natural  that  he  should  be 
suspected,  if  the  cui  bono  points  out  the  actor  of  a  nefarious 
deed,  it  was  not  unnatural  that  he  should  find  himself  placed 
in  circumstances  of  peculiar  delicacy,  and  manifest  embarrass- 
ment and  confusion  in  his  conduct. 

Captain  Donnellan  was  brought  to  trial,  on  a  charge  of 
poisoning  Sir  Theodosius  Boughton. 

The  leading  point  in  every  case  of  this  sort,  is — did  the 
deceased  die  of  poison  ?  For,  if  he  did  not,  there  is  an  end  of 
the  whole.  Where  there  was  no  poison,  there  was  no  poisoner. 

But  this  was  altogether  a  question  to  be  decided  by  the 
opinion  of  medical  men.  From  what  then  did  they  form  their 
opinion  ?  From  any  of  those  broad  marks,  respecting  which 
all  men  judge  alike.  No  ;  there  was  nothing  of  the  kind  to 
guide  their  judgment.  The  whole  cause  turned  on  circum- 
stances, from  first  to  last.  Presumptions  were  formed  on  con- 
jectures; and  conjectures  supposed  from  circumstances  never 
proved.  Four  physicians  inspected  the  body,  on  dissection, 
the  eleventh  day  after  the  death.  They  gave  their  opinion  to 
the  jury,  and  described  the  circumstances  on  which  that 
opinion  was  founded ;  those  four  said,  they  believed  him  to 
have  died  of  poison. 

The  circumstances  on  which  they  had  given  their  opinion, 
were  stated,  at  the  trial,  to  Doctor  John  Hunter,  the  most 
eminent  physician  of  the  age.  He  declared  he  could  not  dis- 
cover, in  any  of  those  circumstances,  nor  in  all  of  them  united, 
any  sign  of  the  deceased  having  died  from  poison,  nor  any 
symptoms  beyond  those  incident  to  a  man  dying  suddenly. 

Q.  from  the  court  to  Mr.  Hunter.  Then,  in  your  judg- 
ment, upon  the  appearance  the  gentlemen  have  described,  no 
inference  can  be  drawn  from  thence  that  Sir  Theodosius 


xx  IN  TROD  UCTION. 


Bough  ton  died  of  poison  ? — A.  Certainly  not :  it  does  not  give  ' 
the  least  suspicion. 

In  questions  of  science,  and  above  all,  in  those  of  medical 
science,  the  faith  to  be  reposed  in  any  opinion,  will  be  regula- 
ted by  the  professional  eminence  of  the  person  giving  it.  One 
man's  sight  being  generally  as  good  as  that  of  another,  as  to  a 
mere  matter  of  fact;  as  whether  he  saw,  or  did  not  see  such  a 
thing,  the  learned  and  the  ignorant  are  upon  a  par,  and  one 
witness  to  a  fact  is  just  as  good  as  another.  But  the  case  is 
very  different  as  to  a  matter  of  science  ;  for  one  man's  judg- 
ment will  outweigh  that  of  many.  Upon  a  point  of  law  or 
equity,  we  would  not  put  the  opinion  of  a  country  attorney, 
or  of  four  country  attorneys,  against  that  of  a  chief  justice, 
Doctor  John  Hunter  stood,  at  that  time,  at  the  very  head  of 
his  profession ;  his  opinion  gave  the  law  to  that  profession, 
both  in  England  and  in  every  country  in  Europe.  Had  the 
profession  been  to  estimate  his  opinion,  and  not  the  jury,  a 
very  different  verdict  would  have  been  given.  The  case  re- 
ferred peculiarly  to  to  Doctor  Hunter's  line  of  study, — that  of 
dissection,  and  the  appearances  incident  to  a  body  on  sudden 
and  convulsive  death.  He  pronounced,  that  the  dissection 
had  been  irregularly  made,  and  in  a  way  not  to  afford  the  true 
criterion  to  judge  by.  And,  where  the  process  is  irregular, 
when  the  experiment  is  defective,  the  conclusion  must  always 
be  vague  and  doubtful. 

The  gentlemen  composing  the  jury  did  not  perhaps  know 
the  eminence  of  Mr.  Hunter's  character;  nor,  consequently, 
the  weight  due  to  his  opinion.  But  the  judge,  on  the  bench, 
no  doubt  knew  this ;  and  in  balancing  the  evidence,  and  in 
summing  up,  it  was  clearly  his  duty  10  have  stated  the  great 
weight  to  be  attached  to  Mr.  Hunter's  observations.  He 
stated  nothing  of  all  this ;  but  took  them  numerically,  "  four 
medical  men  to  one." 

Thusx  from  an  irregular  dissection,  a  positive  conclusion 
was  admitted. 

It  is  a  rule  of  law,  and  above  all  in  cases  of  life  and  death, 


INTRODUCTION.  xxi 

that  the  want  of  any  one  circumstance  will  prevent  the  effect 
of  the  whole.  Thus,  if  the  dissection  were  irregular,  the 
opinion  formed  in  reference  to  that  dissection  was  a  mere 
nothing.  As  well  may  you  suppose  that  proposition  itself  to 
be  true,  which  you  wish  to  prove,  as  that  other,  whereby  you 
hope  to  prove  it. 

Post  hoc ,  ergo  propter  hoc — a  species  of  argument  which 
often  leads  to  fallacy. 

Because  the  fact  immediately  followed ;  therefore  it  was 
occasioned  by  that  which  it  followed.  He  died  immediately 
after  taking  the  medicine ;  therefore,  he  was  killed  by  the 
medicine. 

The  present  question  is,  was  the  process  on  the  trial 
according  to  law  ?  "Was  the  conclusion  arrived  at  by  regular 
and  legal  forms  ?  The  grounds  on  which  the  legal  inference 
is  to  be  drawn,  must  always  of  themselves  be  clear  and  certain  ; 
there  is  no  presumption  upon  a  presumption ;  there  is  no  in- 
ference from  a  fact  not  known. 

When  the  judgment  of  the  law  is  passed  in  reference  to  a 
certain  thing,  the  existence  of  that  thing  should  be  first  clearly 
made  to  appear. 

The  fact  of  poisoning  ought  to  have  been  established 
beyond  a  shadow  of  doubt,  before  any  person  was  convicted  as 
the  poisoner. 

But  the  jury,  it  will  be  said,  were  satisfied  on  this  point. 
Had  the  evidence  been  duly  summed  up  by  the  judge ;  had 
they  been  told,  as  they  ought  to  have  been,  that  in  experi- 
mental philosophy,  such  as  tracing  the  effects  of  a  particular 
poison,  in  tracing  the  causes,  so  many  and  so  complicated  that 
lead  to  death,  if  the  experiment  is  defective,  if  the  process  is 
vitiated  in  one  instance,  the  result  is  also  vitiated  and  defect- 
ive. Every  practitioner  in  philosophy  is  sensible  and  aware 
of  this  truth  ;  and  wherever  he  finds  that  he  has  erred  in  his 
experiment,  he  sets  the  case  aside,  as  affording  no  satisfactory 
result,  and  renews  his  process  in  another  subject. 

But,  unfortunately,  it  is  a  matter  of  pride,  in  some  men, 


xxii  INTRODUCTION. 


to  be  always  certain  in  their  opinion,  and  to  appear  beyond 
the  influence  of  doubt.  Very  different  was  the  practice  of 
that  modest  and  eminent  man  who  gave  his  evidence  on  this 
trial :  he  was  accustomed  to  the  fallaciousness  of  appearances, 
— to  the  danger  of  hasty  inferences  from  imperfect  proofs,  and 
refused  to  give  his  assent  to  an  opinion,  without  facts  being 
first  produced  to  support  it.  "  If  I  knew,"  said  Mr.  Hunter, 
'•  that  the  draught  was  poison,  I  should  say,  most  probably, 
that  the  symptoms  arose  from  that;  but  when  I  don't  know 
that  that  draught  was  poison,  when  I  consider  that  a  number 
of  other  things  might  occasion  his  death,  I  cannot  answer 
positively  to  it." 

During  the  whole  course  of  this  celebrated  trial,  there  was 
not  a  single  fact  established  by  evidence,  except  the  death,  and 
convulsive  appearances  at  the  moment.  These  appearances, 
Mr.  Hunter  declared,  offered  no  suspicion  whatever  of  poison, 
and  were  generally  incident  to  sudden  death,  in  what  might 
be  called  a  state  of  health  ;  not  only  there  was  no  fact  proved^ 
but  there  was  not  one  single  circumstance  proved.  One  cir» 
cumstance  was  supposed  i'rom  another,  equally  suppositions, 
and  from  two  fictions  united  a  third  was  produced.  The 
existence  of  the  laurel  water  was  thus  made  out :  the  sediment 
found  in  the  vial,  from  which  the  unfortunate  young  man 
had  drunk,  was  supposed  to  smell  like  bitter  almonds ;  for,  as 
the  smell  of  laurel  water  was  not  then  known  to  Lady  Bough- 
ton,  she  could  not  trace  the  resemblance  further;  bitter 
almonds  were  supposed  to  smell  like  laurel  water. 

It  is  here  to  be  observed,  that  the  smell  attached  to  the 
vial  was  momentary,  for  it  was  washed  out  almost  immedi- 
ately, and  could  not  be  twice  experienced.  But  what  so  un- 
certain as  the  sense  of  smell  ?  Of  all  the  human  senses,  it  is 
the  most  uncertain,  the  most  variable,  and  fallacious.  It  is 
often  different  to  different  men,  and  different  in  the  same 
person,  at  one  hour,  from  what  it  is  at  the  next;  a  cold,  a 
slight  indisposition,  the  state  of  the  stomach,  a  sudden  expo- 
sure to  the  air,  will  extenuate  or  destroy  this  impression. 


INTRODUCTION.  xxiii 


But  this  train  of  proof  was  altogether  at  variance  with 
principles.  In  law,  as  already  observed,  the  arguments  should 
be  drawn  from  one  reality  to  another ;  but  here,  the  argument 
turned  upon  the  breath,  the  smell  of  a  woman,  distracted  at 
the  moment,  with  the  loss  of  her  son,  and  ready  to  ascribe  that 
evil  to  the  first  thing  that  came  in  her  way: 

All  proof  must  begin  at  a  fixed  point.  The  law  never 
admits  of  an  inference  from  an  inference.  Two  imperfect 
things  cannot  make  one  perfect.  That  which  is  weak,  may  be 
made  stronger ;  but  that  which  has  no  substance,  cannot  be 
corroborated.  The  question  is  never  what  a  thing  is  like;  but 
the  witness  must  swear  to  his  belief,  as  to  what  it  is.  A  simile 
is  no  argument.  Upon  the  principle,  that  comparison  of  hands 
is  no  evidence,  in  a  criminal  trial,  comparison  of  smells  must 
be  held  to  be  equally  defective.  Besides,  there  are  a  variety  of 
articles  that  resemble  bitter  almonds  in  the  smell,  and  many 
of  these  altogether  innoxious. 

In  circumstantial  evidence,  the  circumstance  and  the  pre- 
sumption are  too  often  confounded  ;  as  they  seem  to  have  been 
throughout  this  trial.  The  circumstance  is  always  a  fact ; 
the  presumption  is  the  inference  drawn  from  that  fact.  It  is 
hence  called  presumptive  proof;  because  it  proceeds  merely  on 
presumption  or  opinion.  But  the  circumstance  itself  is  never 
to  be  presumed,  but  must  be  substantively  proved.  An  argu- 
ment ought  to  consist  in  something  that  is  itself  admitted; 
for  who  can  prove  one  doubtful  thing  by  another.  If  it  was 
not  laurel  water,  that  Sir  Theodosius  drank,  the  proof  fails  as 
to  the  effect ;  and,  certainly,  some  of  the  usual  proofs,  some  of 
the  common  indicia  or  marks  of  things,  should  have  been 
established.  "Where  did  the  prisoner  procure  it  ?  From  whom 
did  he  obtain  it  ?  Where,  and  what  time, — and  by  whom,  or 
how  did  he  administer  it  ?*  Nothing  of  this  kind  was  proved. 

The  whole  proof,  as  to  laurel  water,  rested  upon  the  com- 

*  Venenum  arguis  :  ubi  emi  ?  a  quo  ?  quanti  ?  per  quern  dedi  ?  quo 
conscio  ?  Quintilian,  1. 5,  c.  8,  s.  37 


xxiv  IN  TROD  UCTION. 

parison  of  the  smell.  Question  to  Doctor  Parsons,  "  You 
ground  your  opinion  upon  the  description  of  its  smell  by  Lady 
Bonghton  ?"  Answer.  "  Yes,  we  can  ground  our  opinion  upon 
nothing  else  but  that,  and  the  subsequent  effects." 

But  the  judgment  of  the  cause  from  its  effects,  Mr.  Hunter 
has  already  shown  to  be  equally  conjectural  as  that  formed 
from  its  resemblance  in  smell. 

The  proof  proceeds.  He  was  supposed  to  be  poisoned, 
because  it  was  believed  to  be  laurel  water;  and  it  was  believed 
to  be  laurel  water,  because  he  was  supposed  to  be  poisoned. 
We  will  not  say  that  both  these  suppositions  might  not  have 
been  true ;  yet  still  they  were  but  conjectures,  unsupported  by 
any  proof,  and  formed  against  all  the  rules  of  law. 

But  the  accused,  it  is  said,  furnished  the  proof  against  him- 
self, by  his  own  distrust  of  his  innocence.  He  no  doubt  be- 
trayed great  apprehensions  of  being  charged  with  the  murder ; 
but  are  innocent  men  never  afraid  of  being  thought  guilty  ? 

We  readily  recognize  all  the  general  truisms,  and  common- 
place observations,  as  to  the  confidence  of  innocence,  and  the 
consciousness  of  guilt ;  but,  we  find,  from  history,  that  inno- 
cence loses  its  confidence,  when  oppressed  with  prejudice;  and 
that  men  have  been  convicted  of  crimes,  which  they  never 
committed,  from  the  very  means  which  they  have  taken  to 
clear  themselves. 

"  An  uncle  who  had  the  bringing  up  of  his  niece,  to  whom 
he  was  heir  at  law,  correcting  her  for  some  offense,  she  was 
heard  to  say,  '  Good  uncle,  do  not  kill  me ;  *  after  which  time 
she  could  not  be  found ;  whereupon  the  uncle  was  committed 
upon  suspicion  of  murder,  and  admonished,  by  the  justices  of 
the  assize,  to  find  out  the  child  by  the  next  assizes ;  against 
which  time  he  could  not  find  her,  but  brought  another  child, 
as  like  her  in  years  and  person  as  he  could  find,  and  appa- 
relled her  like  the  true  child ;  but  on  examination  she  was 
found  not  to  be  the  true  child.  Upon  these  presumptions 
(which  were  considered  to  be  as  strong  as  facts  that  appear  in 
the  broad  face  of  day),  he  was  found  guilty  and  executed; 


IN  TROD  UCTION.  xxv 


but  the  truth  was,  the  child,  being  beaten,  ran  away,  and  was 
received  by  a  stranger;  and  afterwards,  when  she  came  of 
age  to  have  her  land,  came  and  demanded  it,  and  was  directly 
proved  to  be  the  true  child.* 

The  above  case  was  referred  to  by  Lord  MANSFIELD,  in  his 
speech  in  the  Douglass  cause,  as  an  illustration  that  forgery, 
and  falsehood  itself,  has  been  sometimes  used  to  defend  even 
an  innocent  cause.  "It  was  no  uncommon  thing,"  he 
observed,  "  for  a  man  to  defend  a  good  cause  by  foul  means, 
or  false  pretenses." 

Captain  Donnellan  was  liable  to  suspicion,  and  to  great 
suspicion,  on  the  general  relations  of  the  subject,  independent 
of  particular  circumstances,  and  would  have  been  suspected 
by  all  the  world,  had  he  been  never  so  innocent. 

In  the  first  place,  it  was  a  well-known  fact,  that  he  had 
been  obliged  either  to  quit  the  army  (to  which  he  origin- 
ally belonged),  or  had  been  cashiered  by  the  sentence  of  a 
court-martial. 

Secondly,  he  was  of  all  other  men  the  person  who  was  to 
have  gained  by  the  death  of  Sir  Theodosius  Bough  ton ;  to 
whose  estate  and  property  he  succeeded  as  his  brother-in-law. 
No  other  human  being  had  an  interest  in  the  case.  Such  is 
the  disposition  in  human  nature  (founded  perhaps  on  a  too 
just  knowledge  of  our  feelings  and  principles  of  action),  that 
first  suspicion  always  points  to  the  person  who  is  to  gain  by 
it,  as  the  author  of  any  mischief  of  which  the  real  perpetra- 
tor is  not  known.  The  cui  bono  was  not  invented  by  Cassius 
Severus,  to  whom  it  is  ascribed, — but  every  man  is  alike  the 
rock  of  the  accused,  in  this  respect. 

If,  therefore,  it  was  natural,  on  general  grounds,  that  Mr. 
Donnellan  should  be  so  suspected,  it  was  also  natural  for  him 
to  be  sensible  that  he  would  be  so,  and  consequently,  to  be 
alarmed,  distracted,  and  uneasy. 

But  it  will  be  said,  that,  granting  all  this,  he  displayed 

*  Male's  Pleas  of  the  Crown,  v.  2,  p.  290. 


xxvi  IN  TROD  UCTION. 

more  uneasiness  than  was  even  natural  to  one  in  his  situa- 
tion. It  is  a  delicate  thing  to  answer  this  question, — it  is  a 
nice  thing  to  fix  the  standard  of  human  feelings, — and  to 
say  what  degree  of  perturbation  a  man,  already  branded 
with  guilt  and  conviction,  shall  feel  when  placed  under  cir- 
cumstances which  make  him  to  be  suspected  of  a  capital 
crime. 

Lawyers,  and  those  accustomed  to  see  and  advise  with  per- 
sons in  that  unfortunate  predicament,  only  can  tell  the  ter- 
rible apprehensions  that  every  man  feels  at  the  idea  of  being 
a  second  time  brought  to  a  public  trial ;  it  is  altogether  a  new 
view  of  human  nature,  and  we  seldom  estimate,  rightly,  feel 
ings  which  we  have  never  experienced,  nor  expect  to  ex 
perience  in  our  own  persons,  nor  have  witnessed  in  that  of 
other  persons ; — 

"  To  thee  no  reason, — 

"  Who  good  has  only  known,  and  evil  has  not  proved." 

They  who  have  been  accustomed  to  carry  on  criminal 
prosecutions,  must  be  fully  aware  of  the  influence  which  a 
former  trial  and  conviction  is  calculated  to  have  on  almost 
any  accusation ;  but  in  no  case  can  that  influence  be  greater 
than  where  the  trial  turns  on  presumptive  proof.  For  here 
it  is  often  the  feelings,  the  prejudices,  and  opinion  of  the 
the  jury,  that  supply  the  want  of  evidence. 

Suspicion  is  to  be  distinguished  from  proof, — a  thousand 
suspicions  do  not  form  one  proof.  We  understand,  in  common 
language,  by  the  term  suspicion,  the  imagining  of  something 
ill,  without  proof.  It  may,  therefore,  form  a  proper  ground 
of  accusation,  but  never  of  conviction :  it  seems  to  arise  from 
the  general  semblance  of  things,  and  often  from  the  morals 
of  the  individual,  rather  than  from  any  distinct  act.  Thus, 
in  the  civil  law,  a  guardian  is  regarded  as  suspected,  whose 
morals  render  him  so. 

A  suspicion  is  one  thing,  and  a  necessary  inference  an- 


-  r 


INTRODUCTION.  xxvii 


other :  a  suspicion  is  an  impression  on  another  man's  mind, 
— an  inference  is  made  from  the  fact  itself. 

^There  certainly  was  no  overt  act  proved  against  the  pris- 
oner during  the  whole  course  of  this  trial ;  it  was  not  proved 
that  he  gave  the  poison,  or  saw  it  given,  or  had  such  in  his 
possession.  Many  things,  no  doubt,  in  his  demeanor  and 
conversation,  gave  strong  suspicions  against  him ;  but,  if 
the  civil  law  positively  forbids  a  man  being  condemned  on 
suspicion,  can  that  be  justified  by  ours  ? 

"  The  wisdom  and  goodness  of  our  law  appears  in  nothing 
more  remarkably,  than  in  the  perspicuity,  certainty,  and 
clearness  of  the  evidence  it  requires  to  fix  a  crime  upon  any 
man,  whereby  his  life,  his  liberty,  or  his  property  can  be  con- 
cerned: herein  we  glory  and  pride  ourselves,  and  are  justly 
fhe  envy  of  all  our  neighbor  nations.  Our  law,  in  such 
cases,  requires  evidence  so  clear  and  convincing,  that  every 
bystander,  the  instant  he  hears  it,  must  be  fully  satisfied  of 
the  truth  and  certainty  of  it.  It  admits  of  no  surmises, 
innuendoes,  forced  consequences,  or  harsh  constructions,  nor 
anything  else  to  be  offered  as  evidence,  but  what  is  real  and 
substantial,  according  to  the  rules  of  natural  justice  and 
equity."* 

We  have  been  the  more  full  in  our  observations  on  this 
trial,  because  it  has  been  so  often  quoted  with  a  sort  of 
triumph,  as  forming  a  model  and  illustration  of  the  nature  of 
circumstantial  evidence.  It  is  an  illustration,  indeed,  of  how 
little  evidence  one  man  has  been  convicted  on;  but  it  is  an 
illustration  of  nothing  else. 

We  can  never  bring  ourselves  to  believe,  that  it  is  neces- 
sary to  forfeit  the  life  of  a  man  on  bare  suspicion,  on  pre- 
sumptions without  proof,  and  on  inferences  unsupported  by 
evidence. 

A  rule  of  conduct,  to  be  good,  must  be  so  on  general 
grounds,  and  in  reference  to  the  state  of  society  in  which  we 


*  Lord  Cowper's  speech  on  the  Bishop  of  Rochester's  trial. 


xxviii  INTRODUCTION. 

are  placed ;  and,  happily,  the  wholesome  state  of  British  mor- 
als does  not  require  that  men  should  be  convicted  on  any  evi- 
dence but  that  which  is  established  by  law,  and  warranted  by 
sound  reason. 

The  mischief  of  a  nice  conviction  does  not  rest  with  the 
particular  case ;  precedents  are  grounds  of  luw  by  the  English 
practice,  and  indeed  the  most  general  ground  of  our  law  of 
evidence. 

We  have,  in  more  than  one  instance,  witnessed  the  doc- 
trine of  circumstantial  evidence  being  hastily  applied  by 
loose  analogies  and  incidents,  foreign  to  the  intrinsic  condi- 
tions of  the  subject.  But  we  do  not  feel  ourselves  at  liberty 
to  hurt  the  tenderness  due  to  living  reputation,  by  recurrence 
to  recent  instances;  we  adopt  the  more  agreeable  duty  of 
bearing  testimony  to  the  wise  maxim  of  an  eminent  magis- 
trate: "Xothiug  can  be  more  dangerous  or  unjust,  in  mat- 
ters of  fliis  nature,"  says  Mr.  Chief  Justice  HYDE,  speaking 
of  homicide,  "  than  to  establish  material  distinctions  upon 
points  which  do  not  enter  into  the  intrinsic  merits  of  the 
case."  (East's  Pleas  of  the  Crown,  p.  241.) 

The  evidence  of  circumstances  on  every  criminal  trial, 
should  be  confined  as  much  as  possible  to  the  actual  commis- 
sion of  the  fact. 

The  intention,  indeed,  must  always  precede  the  act,  and  is 
chiefly  to  be  judged  of  by  the  antecedent  circumstances.  But 
then  each  of  these  circumstances  should  be  regarded  as  a  facb 
to  be  proved  and  established  by  evidence ;  and,  unless  so  es- 
tablished, ought  never  to  form  a  ground  of  conviction.  We 
must  once  more  revert  to  the  trial  for  illustration.  On  pass- 
ing sentence,  Mr.  Justice  BULLEB  conveyed  the  following 
opinion  as  to  the  motives : — "  Probably  the  greatness  of  his 
fortune  caused  the  greatness  of  your  offense;  and  I  am  fully 
satisfied,  on  the  evidence  given  against  you,  that  avarice  was 
your  motive,  and  hypocrisy  served  you  with  the  means." 

But  where  or  how  was  this  proved  by  evidence  on  the 
trial  ?  The  speech  of  a  judge  is  to  be  taken  out  of  the  evi- 


INTRODUCTION.  xxix 

dence  adduced  on  the  trial ; — if  it  is  not  so  limited,  it  may  be 
difficult  to  fix  its  bounds. 

In  a  criminal  trial,  and  more  especially  in  the  trial  for  a 
capital  offense,  everything  is  supposed  to  be  governed  by 
fixed  and  known  rules.  There  is  here  no  room  for  the  discre- 
tion of  a  judge ;  the  proof  by  which  the  prisoner  is  to  be  tried 
is  as  fixed  as  the  law  which  condemns  the  crime ;  at  least,  the 
principles  of  that  proof  are  to  be  stated  by  the  judge  to  the 
jury,  as  known  and  received  maxims  of  reason,  handed  down 
by  a  long  train  of  precedents,  or  fixed  by  statutory  enact- 
ment. "Whatever  the  rules  in  "Westminister  Hall  are,  it  is 
not  therefore  reason  because  it  is  a  rule ;  but  because  it  is 
reason,  and  reason  approved  of  by  long  experience,  therefore 
it  is  a  rule."  (State  Trials,  vol.  4,  p.  291.)  The  opinion  of 
Mr.  Justice  BULLER  might  have  been  very  just,  but  if  it  was 
not  regularly  formed,  it  was  extra-judicial  and  of  dangerous 
example. 

It  is  an  observation  warranted  by  the  history  of  our  crimi- 
nal law,  that  all  the  instances  by  which  innocent  men  have 
lost  their  lives,  have  arisen  from  precedents  against  guilty 
men  ;*  but  laws  were  meant  to  protect  the  innocent,  as  well 
as  to  punish  the  guilty. 

The  following  observation,  by  Lord  BACON,  suggests  the 
caution  with  which  men  should  give  their  assent  to  any  pro- 
position founded  on  a  mere  similarity  of  circumstances: — 
"  The  mind,"  he  observes,  "  has  this  property, — that  it  readily 
supposes  a  greater  order  and  conformity  in  things  than  it 
finds ;  and  although  many  things  in  nature  are  singular,  and 
extremely  dissimilar,  yet  the  mind  is  still  imagining  parallel 
correspondence  and  relations  betwixt  them  which  have  no* 
existence. 

"Nor  does  this  folly,"  he  adds,  " prevail  only  in  abstract 
tenets,  but  also  in  simple  notions."  (Novum  oryanum,  s.  2. 
apliorim  45.) 

,_  — ' 

*  Omnia  mala  exampla,  ex  bonis  initiis  orta  sun. 


xxx  INTRODUCTION. 

Every  one  may  prove  the  justice  of  these  remarks,  by  his 
reflections  on  what  he  sees  every  day  occurring  in  common 
life. 

Weak  men  are  always  the  first  to  assent  and  to  admit  of 
loose  analogies,  imperfect  resemblances,  and  inferences  with- 
out proof, — whilst  men  of  stronger  minds,  and  more  reflec- 
tion, look  out  for  distinctions;  they  search  for  discriminations 
in  subjects  nearly  similar,  and  are  slow  in  yielding  their 
assent  to  first  impressions.  Judgment  consists  in  distinguish- 
ing things  which  are  nearly  alike,  without  exactly  being  so. 

In  the  general  prejudice,  which  at  present  prevails  for 
circumstantial  evidence,  the  mind,  I  am  afraid,  is  rather  dis- 
posed to  look  out  for  analogies  and  resemblances,  than  for 
discrimination. 

f  In  almost  every  trial,  it  is  the  interest  of  the  accuser  to 
1  accumulate  his  proofs,  whilst  the  safety  of  the  prisoner  con- 
sists in  considering  these,  separate  and  apart;  this  practice, 
therefore,  has  a  tendency  rather  to  convict  than  to  acquit. 

We  should  lament  to  advance  any  thing  that  might  tend 
to  weaken  the  facility  of  detecting  crimes ;  but  that  facility 
may  be  increaped  by  establishing  certain  rules  for  the  deter- 
mination of  proof. 

Without  presuming  to  state  a  body  of  general  rules,  we 
may  be  allowed  to  show  where  some  obvious  principles  have 
been  violated.  All  instruction  proceeds  safest  by  negatives  and 
exclusives  to  what  is  positive  and  affirmative.  And  it  was  this 
principle  which  led  us  to  dwell  so  particularly  on  the  above  case. 
We  conceive  one  great  error  has  arisen  from  the  popular  say- 
ing, that  circumstances  cannot  lie ;  from  the  idea  that  cir- 
cumstantial evidence  is  equivalent  to  direct  proof. 

And,  perhaps,  from  the  vanity  of  forming  resemblances, 
where  (if  that  passion  in  the  judicial  character  is  ever  allow- 
able), the  vanity  should  rather  be  in  perceiving  distinctions. 

Nothing  is  more  dangerous  in  the  mouth  of  a  judge,  than 
popular  brocards,  barren  generalities,  and  loose  unsettled 
maxims,  which  carry  away  the  attention  of  the  jury  from  the 


IN  TROD  UCTION.  xxxi 


intrinsic  evidence  of  the  case  itself,  and  prevent  the  free 
exercise  of  their  own  understandings.  It  is  not  every  jury- 
man that  can  understand  a  general  theory,  but  every  man  of 
sense  can  compare  what  he  hears  at  the  trial,  with  similar 
circumstances,  as  falling  under  his  own  experience,  and  so 
estimate  for  himself  the  credibility  of  the  evidence. 

I  deprecate  an  argumentative  judge,  reasoning  a  jury  into  a 
belief  of  guilt  or  innocence,  rather  than  leaving  them  to 
judge  from  their  own  feelings;  from  those  feelings  which  God 
and  nature  have  bestowed  on  them,  as  the  safeguard  of  inno- 
cence, and  the  true  measure  of  human  conduct. 

The  following  observation,  in  the  charge  so  often  alluded 
to,  deserves  particular  remark : — "  It  is  not  within  the  reach 
and  compass  of  human  abilities  to  invent  a  train  of  circum- 
stances which  shall  be  so  connected  together  as  to  amount  to 
a  proof,  without  affording  opportunities  of  contradicting  a 
great  part,  if  not  all,  of  these  circumstances." 

This  is  one  of  those  general  sayings  which,  coming  from 
high  authority,  is  allowed  to  pass  without  examination,  and, 
from  being  often  repeated,  no  one  thinks  to  doubt  of  its  truth. 
No  other  remark,  however,  was  ever  more  refuted  by  experi- 
ence. If  the  observation  was  just,  we  should  find  it  illus- 
trated by  practice;  but  we  know  that  there  are  infinitely 
more  instances  of  mistaken  convictions  on  circumstantial 
evidence,  than  by  any  other  species  of  proof  whatever. 
"  Reducing  general  words  to  particular  facts,  clears  the 
sophistry  of  them."* 

I  beg  here  to  dwell,  a  little  more  minutely,  on  the  hard- 
ship of  requiring  a  prisoner  to  controvert  a  train  of  circum- 
stantial evidence.  For,  how  can  a  prisoner,  altogether 
innocent  of  the  charge,  controvert  circumstances,  or  an 
account  of  events,  with  which  he  is  unacquainted.  A  man, 
charged  with  the  commission  of  a  crime,  at  a  period  long  an- 

*  Remarks  on  College's  trial,  by  Sir  J.  Hawles.  State  Trials,  vol.  3, 
p.  621. 


xxxii  IN  TROD  UCTION. 


terior  to  the  trial,  if  innocent,  and  at  a  distance  from  the 
place,  at  the  time  of  its  occurrence,  can  only  establish  his 
innocence  by  one  of  two  methods : — first,  by  showing  a  con- 
tradiction in  the  circumstances  of  the  proof  itself;  or, 
secondly,  hy  establishing  an  alibi, — that  is,  by  showing  that 
lie  w:.)s  at  a  different  place  at  the  time.*  In  regard  to  the  first 
mode  of  refuting  the  charge:  if  he  is  ignorant  of  the  facts, 
if  he  is  unaccustomed  to  the  nature  of  legal  argument,  he 
may  not  easily  confute  the  chain  of  circumstances.  A  pre- 
meditated story  is  always  so  made  up  as  to  bear  the  appear- 
Iance  of  consistency.  Men  will  believe  a  probable  falsehood 
rather  than  a  singular  truth;  and,  in  regard  to  the  proof  of 
an  alibi,  if  the  prisoner  does  not  happen  to  recollect  the  day 
or  cannot,  perhaps,  recall  to  mind  where  he  chanced  to  be  on 
that  day,  he  is  left  without  a  defense.  The  proof  of  a  nega- 
tive is  always  difficult,  often  impossible. 

But  what  is  the  situation  of  a  person  charged  with  a  capi- 
tal crime  ?  Suspicions  of  this  sort  generally  fall  upon  the 
needy  and  unfortunate.  He  is  brought  from  a  jail,  where  he 
has  been  perhaps  long  confined,  distracted  and  agitated  with 
his  situation ;  he  has  none  to  assist  him  or  suggest  to  him 
what  course  to  pursue ;  and  no  counsel  is  allowed  to  plead  for 
him,  and  assert  his  innocency  of  the  facts  charged.  A  long 
train  of  circumstances  are  offered  by  the  witnesses,  of  the 
whole  of  which  he  is  ignorant,  and,  therefore,  unprepared  to 
ask  the  necessary  questions,  or  to  point  out  to  the  jury  the 
incongruity  of  the  story  advanced: — his  very  attempt  to  do 
so,  unsuccessfully  (that  is  to  say,  if  he  makes  observations  on 
the  evidence,  which  are  not  explanatory  or  correct),  will  be 
held  an  argument  of  his  guilt.  But  the  facts  have  been  sworn 
to,  and  his  personal  appearance  is  perhaps  against  him;  and 
his  character, — it  may  be,  suffering  under  prejudice.  If  a 
weak  magistrate  happens  to  sit  on  the  bench  (and  weak  men 

*  The  character  of  the  witnesses  is,  no  doubt,  always  a  matter  of  the 
most  important  consideration. 


INTRODUCTION.  xxxiii 

4 

sometimes  find  their  way  to  the  bench,  as  well  as  to  other 
places) ;  if  the  judge  is  infirm,  or  his  attention  exhausted  by 
the  fatigue  of  a  long  trial ;  and  if,  in  summing  up,  he  loses 
sight  of  the  chain  of  incidents,  assumes  a  fact  as  established 
before  it  is  so, — endeavors  to  prove  facts  by  other  facts,  which 
are  not  proved  themselves, — forgets  the  attention  which  is  due 
to  the  character  of  the  witnesses,  and  has  allowed  the  counsel 
for  the  prosecution,  in  his  opening  speech,  to  prejudice  and 
inflame  the  minds  of  the  jury! — 

It  were  superfluous  to  ask  what  the  result  of  such  a  trial 
must  naturally  be.  We  hope,  and  believe,  that  such  a  con- 
currence of  incidents,  hostile  to  justice,  is  very  uncommon. 

But  to  return  to  the  proposition  in  the  charge :  can  it 
ever  be  admitted  that  the  number  of  circumstances  alleged 
against  a  prisoner,  facilitates  the  refutation?  Surely  the  diffi- 
culty of  defense  is  increased  by  the  multiplicity  of  proof  that 
it  has  to  contend  with!  The  attention  is  distracted;  and  the 
very  embarrassment  incident  to  the  occasion,  is  alone  suffi- 
cient to  bereave  any  common  man  of  his  faculties. 

The  civil  law  has  foreseen  the  embarrassments,  which  a 
prisoner  must  always  be  under,  from  a  variety  of  witnesses 
being  produced  against  him;  and  has,  therefore,  left  it  to  the 
discretion  of  the  judge  to  moderate  their  number.  It  might 
as  well^be  said,  that  a  prisoner  has  an  aclvantag3  in  the  mul- 
tiplicity of  witnesses  opposed  to  him,  because  if  false  he  can 
always  refute  some  of  them. 

But,  if  you  break  the  chain  of  circumstances,  it  will  be 
said,  in  one  link,  the  whole  structure  falls  to  the  ground. 
This,  no  doubt,  ought  to  be  the  consequence.  But  is  the  fact 
so?  Does  experience  warrant  the  observation?  Are  we  to 
suppose  that  all  those  who  have  been  irregularly  convicted, 
mad£  no  defense,  and  broke  no  part  of  the  chain  ?  They 
must  naturally  have  offered  something  to  the -consideration  of 
the  jury.  Yet  still,  we  see,  that  the  general  effect  of  the 
whole,  the  multiplicity  of  the  circumstances,  pointing  against 
C 


xxxiv  INTRODUCTION. 


the  prisoner,  has  been  thought  sufficient  to  warrant  convic- 
tion. 

It  happens,  not  unfrequently,  that  a  prisoner  is  not  ap- 
prized of  the  evidence  intended  to  be  produced  against  him. 
If  the  case  is  altogether  false  on  the  part  of  the  prosecution, 
the  difficulty  of  defense  is  increased.  For  a  man  can  only  re- 
fute a  false  story,  by  being  acquainted  with  some  part  of  it. 
The  true  case  must  always  be  opposed  to  the  false  one.  Thus, 
in  the  case  of  two  men  who  were  tried  some  few  years  ago, 
for  the  murder  of  Mr.  Steele,  on  Hounslow  Heath,  a  long  de- 
tail of  the  circumstances  attending  the  occasion,  was  given  in 
evidence  against  them.  But  if  they  were  not,  as  they  as- 
serted, present  on  the  occasion,  and  knew  nothing  of  either 
Mr.  Steele  or  the  murder,  how  was  it  possible  for  them  to  re- 
fute or  disprove  the  circumstances  ? 

The  accusation  was  not  brought  until  some  years  after  the 
murder.  They  could  not  bring  to  recollection  where  they 
were  on  that  day,  and  so  failed  in  establishing  an  alibi. 

A  different  man  has  been  since  brought  to  trial  for  that 
very  murder.  It  is  true  that  the  judges  did  not  allow  the 
evidence  to  be  entered  upon,  because  they  thought  that  it  was 
insufficient  on  the  statement  of  the  counsel  in  his  opening 
speech. 

It  should  be  always  kept  in  mind,  that  circumstantial  evi- 
dence is  merely  supplemental;  and  is  only  resorted  to  from 
the  want  of  original  and  direct  proof.  And  it  never  can  be 
said  that  what  is  secondary,  is  equal  to  that  which  is  original, 
— the  thing  substituted  equal  to  that  which  it  is  meant  to 
supply. 

And  this  distinction  seems  fully  recognized  by  Lord  Chief 
Baron  GILBERT.  "  "When  the  fact  itself  cannot  be  proved, 
that  which  conies  nearest  to  the  proof  of  the  fact,  is  the  proof 
of  the  circumstances  that  necessarily  and  usually  attend  such 
facts,  and  called  presumptions ;  and  not  proof,  for  they  stand 
instead  of  the  proofs  of  the  fact  till  the  contrary  be  proved." 
(Gilbert's  Law  of  Evidence,  vol.  1,  p.  142.) 


IN  TROD  UCTION.  xxxv 

A  regard  to  the  peace  and  good  order  of  society,  certainly 
requires  that  crimes  shall  be  liable  to  be  proved  by  circum- 
stantial evidence.  But  a  regard  to  the  well  being  of  society 
likewise  demands,  that  the  mode  of  proof  should  be  regulated 
by  some  fixed  rules.  If  the  nature  of  the  thing  admits  of  but 
few  rules,  for  that  very  reason,  those  few  should  be  the  more 
distinctly  observed.  This  principle  is  excellently  illustrated 
by  the  deep  G-ravina,  who  somewhere  observes  (for  the  book  is 
not  at  hand  for  reference),  that  as  the  military  state  admits  of 
but  few  laws,  those  few  should  be  the  more  distinctly  ob- 
served, as  they  could  only  have  been  introduced  into  an  army 
or  camp  from  a  strong  sense  of  their  necessity. 

Legal  proceedings  would  be  vague  and  uncertain,  judges 
would  become  arbitrary,  and  innocence  would  be  exposed  to 
the  resentment  of  witnesses,  if  some  general  and  fixed  rules 
were  not  observed  for  the  discovery  of  truth. 

Of  these  the  following  are  perhaps  the  chief : — 

1.  The  actual  commission  of  the  crime  itself  (the  corpus  de- 
licti) shall  be  clearly  established. 

2.  Each  circumstance  shall  be  distinctly  proved. 

3.  The  circumstance  relied  on,  shall  be  such  as  is  necessary 
or  usually  incident  to  the  fact  charged. 

4.  When  the  number  of  circumstances  depend  on  the  testi- 
mony of  one    witness,  that  number  shall  not  increase  the 
strength  of  the  proof.     For,  as  the  whole  depends  on    the  ve- 
racity of  the  witness,  when  that  fails  the  whole  fails. 

5.  Direct  evidence  shall  not  be  held  refuted  from^leing  op- 
posed to  circumstances  incongruous  with  that  evidence.  Because 
a  certain  degree  of  incongruity  is  incident  to  every  man's 
conduct. 

6.  TJie  judge,  in  summing  up,  shall  assume  no  fact  or  cir- 
cumstance as  proved  ;  but  shall  state  the  whole  hypothetically 
and  conditionally  ;  leaving  it  entirely  to  the  jury,  to  determine 
how  far  the  case  is  made  out  to  their  satisfaction. 

7.  The  difficulty  of  proving  the  negative  shall  in  all  cases 
be  allowed  due  weight.    But  the  silence  of  the  prisoner  as  to 


xxxvi  INTRODUCTION. 


facts,  which,  if  innocent,  he  might  have  explained,  shall  be 
held  an  argument  against  him.  This,  of  course,  proceeds 
upon  the  supposition,  that  he  stood  fully  apprized,  before  his 
trial,  of  all  that  was  intended  to  be  produced. 

8.  The  counsel  for  tlw  prisoner  shall  be  allowed  to  object 
freely  to  the  production  of  any  evidence,  as  not  proper  to  go  to 
the  jury,  or  as  not  being  of  legal  credence.    On  Captain  Don- 
nellan's  trial,   the   counsel  do  not  appear  to   have    always 
availed  themselves  of  this  privilege. 

The  liberty  of  objecting  to  any  piece  of  evidence,  ought, 
on  every  occasion,  to  be  strenuously  exerted;  as  supplying, 
in  a  great  measure,  the  right  of  making  the  defense. 

9.  The  jury  shall  be  as  fully  convinced  of  the  guilt  of  the 
prisoner,  from  the  combination  of  the  circumstances,   as  if 
direct  proof  had  been  brought. 

It  should  always  be  considered,  whether  the  connection 
betwixt  the  circumstances  and  the  crime  is  necessary,  or  only 
casual  and  contingent ;  and  whether,  therefore,  the  circum- 
stances necessarily  involve  the  guilt  of  the  prisoner,  or  only 
probably  so ;  whether  these  circumstances  might  not  all  exist, 
and  yet  the  accused  be  innocent. 

It  seems  desirable,  that  some  inchoate  act,  approaching  to 
the  crime,  should  be  proved  on  the  prisoner ;  and  that  he 
should  not  be  convicted  on  general  appearances, — such  as 
from  being  found  in  a  certain  situation.  The  improper  con- 
viction seem  chiefly  to  have  been  owing  to  a  neglect  of  this 
rule.  Strong  appearances,  but  without  any  act  proved 
against  the  prisoner,  have  too  often  turned  out  unfounded. 

It  is  sometimes  said,  in  summing  up  by  the  judge,  that 
the  evidence  is  the  best  that  the  nature  of  the  case  can  be 
supposed  to  afford ;  but  this,  certainly,  is  no  reason  for  the 
jury  being  satisfied  with  it.  In  the  first  place,  the  nature  of 
the  case  is  only  to  be  known  by  the  evidence.  The  case  of  an 
innocent  man  must  always  be  of  a  nature  to  afford  very  little 
evidence  ;  but  the  jury,  let  the  case  be  what  it  will,  must  be 
distinctly  persuaded  of  the  guilt  of  the  prisoner,  before  they 


IN  TROD  UCTION.  xxxvii 


return  such  a  verdict.  Agreeably  to  the  common  law,  where 
the  facts  have  gone  regularly  before  a  jury,  and  there  is  no 
misdirection  from  the  judge  in  summing  up,  the  proof  is 
complete.  When  the  jury  is  satisfied,  the  law  is  satisfied.  No 
principle  can  be  at  once  more  calculated  to  facilitate  the  de- 
tection of  crimes,  to  ensure  the  safety  of  innocence,  and  to 
maintain  the  general  peace  of  society. 

10.  Where  the  body  of  the  act  is  distinctly  sworn  to,  a  vari- 
ation in  the  circumstances  does  not  destroy  the  proof.  "If 
several  independent  witnesses,  of  fair  character,  should  agree 
in  all  the  parts  of  a  story  (in  testifying,  for  instance,  that  a 
murder  or  a  robbery  was  committed  at  a  particular  time,  in  a 
particular  place,  and  by  a  certain  individual),  every  court  of 
justice  in  the  world  would  admit  the  fact,  notwithstanding 
the  abstract  possibility  of  the  whole  being  false.  Again,  if 
several  honest  men  should  agree  in  saying  that  they  saw  the 
king  of  France  beheaded,  though  they  should  disagree  as  to 
the  figure  of  the  guillotine,  or  the  size  of  his  executioner,  as 
to  the  king's  head  being  bound  or  loose,  as  to  his  being  com- 
posed or  agitated  in  ascending  the  scaffold,  yet  every  court  of 
justice  in  the  world  would  think  that  such  difference,  respect- 
ing the  circumstances  of  the  fact,  did  not  invalidate  the  evi- 
dence respecting  the  fact  itself. 

"  When  you  speak  of  the  whole  of  a  story,  you  cannot  mean 
every  particular  circumstance  connected  with  the  history,  but 
not  essential  to  it ;  you  must  mean  the  pith  and  marrow  of  a 
story ;  for  it  would  be  impossible  to  establish  the  truth  of 
any  fact  (of  Admirals  Byng  or  Keppel,  for  example,  having 
neglected  or  not  neglected  their  duty),  if  a  disagreement  in 
the  evidence  of  witnesses,  in  minute  points,  should  be  con- 
sidered as  annihilating  the  weight  of  the  evidence  in  points  of 
importance.  In  a  word,  the  relation  of  a  fact  differs  essen  - 
tially  from  the  demonstration  of  a  theorem ;  if  one  step  is  left 
out,  one  link  in  the  chain  of  ideas  constituting  a  demonstra- 
tion is  omitted,  the  conclusion  will  be  destroyed ;  but  a  fact 
may  be  established  notwithstanding  a  disagreement  of  wit- 


xxxviii  IN  TROD  UCTION. 

nesses  in  certain  trifling  particulars  of  their  evidence  respect- 
ing it."* 

The  following  rule  is  the  converse  of  the  preceding  one : 

11.  Where  the  leading  fact  or  crime  is  only  to  be  collected 
from  circumstances,  a  material  variation  in  these  will  defeat 
the  effect  of  the  whole. 

For,  as  each  particular  is  to  have  an  effect  on  the  general 
conclusion,  a  variation  in  the  circumstances  may  give  a  differ- 
ent color  to  the  whole  transaction. 

A  system  of  propositions  is  only  true,  because  each  of  the 
propositions,  of  which  it  is  composed,  is  true. 

12.  There  being  no  repugnance  in  the  chain  of  circum- 
stances, is  a  proof  that  a  thing  may  be  ;  not  that  it  is :  though 
there  /being  a  repugnance,  is  a  proof  that  it  cannot  be.    What- 
ever does  not  involve  a  contradiction,  is  possible ;  whatever  in- 
volves one,  is  impossible. 

13.  The  absence  of  the  proof,  naturally  to  be  expected,  is  a 
strong  argument  against  the  existence  of  any  fact  alleged. 
This  applies  particularly  to  cases  where  violence  is  charged. 

"It  is  an  undoubted  truth"  (Lord  MANSFIELD  observed 
in  the  Douglass  cause),  "that  judges,  in  forming  their 
opinion  of  events,  and  in  deciding  upon  the  truth  or  falsehood 
of  controverted  facts,  must  be  guided  by  the  rules  of  proba- 
bility; and,  as  mathematical  or  absolute  certainty  is  seldom 
to  be  attained  in  human  affairs,  reason  and  public  utility  re- 
quire that  judges,  and  all  mankind,  in  forming  their  opinion 
of  the  truth  of  facts,  should  be  regulated  by  the  superior 
number  of  the  probabilities  on  the  one  side  or  the  other, 

*  Apology  for  the  Bible,  p.  344. 

We  shall  search  in  vain  our  State  Trials,  for  a  happier  illustration  of 
the  principle  than  the  above,  from  the  elegant  pen  of  Doctor  Watson. 
"  Literary  men,"  it  has  been  observed,  "  have  marked  superiority  over 
lawyears,  whenever  they  assume  their  profession." 

Quae  argumenta  ad  quern  modum  probandae  cuique  rei  sufficiant,  nullo 
certo  modo  satis  definiri  potest. 

Ex  sententia  animi  tui  te  aestimare  oportet,  quid  aut  credas,  aut  parum 
probatum  tibi  opinaris  (ff.  lib.  22,  tit.  5,  s.  8). 


IN  TROD  UCTION.  xxxix 

•whether  the  amount  of  these  probabilities  be  expressed  in 
words  and  arguments,  or  by  figures  and  numbers." 

Applied  to  the  affairs  of  civil  life  in  reference  to  which  the 
observation  was  made,  the  proposition  is  excellent;  but  the 
rule  does  not  hold  in  criminal  cases.  The  impression  on  the 
mind  of  the  jury,  in  a  criminal  case,  must  be,  not  that  the 
prisoner  is  probably  guilty,  but  that  he  really  and  absolutely 
is  so ; — where  they  doubt,  they  are  to  acquit. 

It  is  often  said,  in  respect  to  evidence  of  this  sort,  if  you 
break  the  chain  of  circumstances,  the  whole  falls  to  the 
ground.  It  is  material,  always,  to  be  apprised  of  the  meaning 
of  terms,  before  we  argue  as  to  their  effect.  What  is  the  im- 
port of  the  term  ?  In  what  does  this  interruption  consist  ? 
The  Douglass  cause  turned  entirely  on  circumstantial  evi- 
dence ;  yet  neither  the  speeches  of  the  judges,  nor  the  singu- 
larly acute  letters  of  Mr.  Stewart,  on  the  subject  of  the  trial, 
afford  any  solution  of  the  term.  The  chain  appears,  on  both 
sides  of  the  question,  repeatedly  broken,  and  as  often  re- 
newed; the  want  of  the  fact  is  supplied  by  argument,  and 
the  argument  invalidated  by  the  want  of  the  fact,  in  endless 
prolixity. 

We  hazard  an  explanation  of  it  with  great  diffidence : — 
the  chain  of  circumstances  is  broken,  whenever  there  is  such  a 
defect  in  the  thread  of  the  narrative  as  cannot  be  accounted 
for ;  or,  such  a  contradiction  in  the  statement,  as  is  irrecon- 
cilable with  probability. 

We  will  not  add  to  the  number  of  the  above  rules,  lest  we 
might  appear  to  aim  at  forming  a  technical  system  for  the 
belief  or  disbelief  of  facts,  independent  of  the  free  exercise  of 
the  understanding  over  the  circumstances  of  the  case. 

We  must  never  bind  ourselves  down  to  believe  or  disbe- 
lieve, on  general  grounds,  abstracted  from  the  condition  of 
times,  persons,  motives,  and  all  the  variety  of  relations  of 
which  the  particular  case  happens  to  consist.  Irregular,  ca- 
pricious, and  shifting  as  man  is,  in  all  his  actions,  we  can 
never  establish  absolute  grounds  for  judging  of  these. 


FAMOUS   CASES 


OF 


CIRCUMSTANTIAL  EVIDENCE, 


i. 


THEEE  lived  in  Paris,  more  than  a  century  ago,  an 
old  dame  who  kept  a  shop  in  a  house  not  far  distant 
from  the  Place  St.  Michel.  She  was  reputed  rich, 
and  was  supposed  to  keep  her  money  in  the  house. 
Her  only  servant  was  a  boy  who  had  lived  with  her 
for  several  years  ;  he  slept  in  the  house,  but  high  up 
in  the  fourth  story,  or  rather  loft,  which  could  only  be 
reached  by  a  staircase,  such  as  was  common  in  those 
days,  outside  the  house  wall,  the  old  lady  sleeping  in 
a  room  on  the  ground  floor  at  the  back  of  the  shop. 
It  was  the  boy's  duty  to  lock  the  shop  door  at  night 
and  retain  possession  of  the  key.  One  morning  the 
neighbors  found  the  shop  door  open  much  earlier  than 
usual,  and  as  there  was  no  one  to  be  seen  in  the  shop, 
some  of  them,  suspecting  that  all  was  not  right,  went 
in.  There  were  no  marks  betokening  a  violent  entry 
of  the  premises,  but  the  old  lady  was  discovered  dead 


FAMOUS    CASES     OF 


in  her  bed,  having  received  many  wounds,  such 
wounds,  to  all  appearance,  having  been  inflicted  with 
a  knife ;  and  a  knife  covered  with  blood  was  found 
lying  in  the  middle  of  the  shop  floor.  One  hand  of 
the  corpse  yet  grasped  a  thick  lock  of  hair,  and  in 
the  other  was  a  neck-handkerchief.  It  was  proved 
beyond  doubt  that  the  knife  and  the  neck-handker- 
chief belonged  to  the  boy  who  had  been  so  long  her 
servant,  and  the  lock  of  hair  also  matched  his  exactly. 
He  was  arrested,  charged  with  the  crime,  and  (proba- 
bly under  torture)  confessed  it,  and  suffered  capital 
punishment  as  a  murderer.  He  was  innocent,  not- 
withstanding. Not  very  long  after  his  execution 
another  boy,  a  servant  in  a  neighboring  wine-shop, 
being  taken  into  custody  for  another  offense,  and 
seized  with  the  pangs  of  remorse,  confessed  to  the 
murder  of  the  old  dame.  He  had  long  been  familiarly 
acquainted  with  the  shop  boy,  who  had  suffered  inno- 
cently, and  had  been  in  the  habit  of  dressing  his  hair. 
He  had  managed  by  degrees  to  save  up  enough  of  the 
lad's  hair  from  the  comb  he  made  use  of  to  make 
into  a  tolerably  stout  lock,  and  this  he  had  put  into 
the  hand  of  the  dead  woman.  He  had  stolen  one  of 
the  boy's  neck-handkerchiefs,  and  also  his  knife,  and 
by  taking  an  impression  in  wax  of  the  key,  had  been 
able  to  construct  another  by  which  to  gain  entrance 


CIRCUMSTANTIAL  EVIDENCE.  3 

to  the  shop.  At  the  first  glance,  the  evidence  in  this 
case  seems  at  once  clear,  natural  and  spontaneous ; 
but  the  very  completeness  of  the  evidentiary  facts 
ought  to  have  aroused  suspicion;  and  there  is  no 
doubt  that  had  a  rigid  investigation  been  set  on  foot, 
the  innocence  of  the  accused  would  have  been 
established. 


FAMOUS    CASES    OF 


II. 


A  CASE  of  fabricated  evidence  of  a  sufficiently 
remarkable  kind  occurred  near  Hull,  in  the  year 
1742.  A  gentleman  traveling  to  that  place  was 
stopped"  late  in  the  evening,  about  seven  miles  from 
the  town,  by  a  masked  highwayman,  who  robbed 
him  of  a  purse  containing  twenty  guineas.  The  high- 
wayman galloped  off  by  a  side  road,  and  the  trav- 
eler, in  no  way  injured,  save  in  purse,  continued  his 
journey.  It  was  now  growing  la,te,  and,  being  ex- 
cited and  alarmed  by  what  had  happened,  he 
naturally  looked  out  for  a  place  of  shelter,  and, 
instead  of  riding  on  to  Hull,  stopped  at  the  first  inn 
he  came  to,  which  was  the  "Bell  Inn,"  kept  by  Mr. 
James  Brunell.  He  went  into  the  kitchen  to  give 
directions  for  his  supper,  and  there  he  related  to 
several  persons  the  fact  of  his  having  been  robbed, 
to  which  he  added  the  further  information,  that  when 
he  traveled  he  always  gave  his  gold  a  peculiar  mark, 
and  that  every  guinea  in  the  purse  taken  from  him 


CIRCUMSTANTIAL    EVIDENCE.  5 

was  thus  marked.  He  hoped,  therefore,  that  the 
robber  would  yet  be  detected.  Supper  being  ready, 
he  withdrew.  The  gentleman  had  not  long  finished 
his  supper,  when  Mr.  Brunell  came  into  the  parlor 
where  he  was,  and,  after  the  usual  inquiries  of  land- 
lords as  to  the  desires  of  the  guest,  observed,  "  Sir, 
I  understand  you  have  been  robbed  in  this  neighbor- 
hood this  evening?"  "Yes,"  said  the  traveler,  "I 
have."  "And  your  money  was  marked?"  con- 
tinued the  landlord.  "It  was  so,"  was  the  reply. 
"A  circumstance  has  arisen,"  resumed  Mr.  Brunell, 
"which  leads  me  to  think  I  can  point  out  the  rob- 
ber. Pray,  at  what  time  in  the  evening  were  you 
stopped."  "It  was  just  setting  in  to  be  dark," 
replied  the  traveler.  "The  time  confirms  my  suspi- 
cions," said  the  landlord;  and  he  then  informed  the 
gentleman  that  he  had  a  waiter,  one  John  Jennings, 
who  had  of  late  been  so  very  full  of  money,  and  so 
very  extravagant,  that  he  (the  landlord)  had  been 
surprised  at  it,  and  had  determined  to  part  with  him, 
his  conduct  being  every  way  suspicious  ;  that  long 
before  dark  that  day,  he  had  sent  out  Jennings  to 
change  a  guinea  for  him  ;  that  the  man  had  only 
come  back  since  the  arrival  of  the  traveler,  saying 
he  could  not  get  change  ;  and  that,  seeing  Jennings 
to  be  in  liquor,  he  had  sent  him  off  to  bed,  deter- 


FAMOUS    CASES    OF 


mined  to  discharge  him  in  the  morning.  Mr.  Brunei! 
continued  to  say,  that  when  the  guinea  was  brought 
back  to  him,  it  struck  him  that  it  was  not  the  same 
he  had  sent  out  for  change,  there  being  on  the 
returned  one  a  mark  which  he  was  very  sure  was 
not  upon  the  other ;  but  he  should  probably  have 
thought  no  more  of  the  matter,  Jennings  paving 
frequently  had  gold  in  his  pocket  of  late,  had  not  the 
people  in  the  kitchen  told  him  what  the  traveler  had 
related  respecting  the  robbery,  and  the  circumstance 
of  the  guineas  being  marked.  He  (Mr.  Brunell)  had 
not  been  present  when  this  relation  was  made,  and, 
unluckily,  before  he  heard  of  it  from  the  people  in 
the  kitchen,  he  had  paid  away  the  guinea  to  a  man 
who  lived  at  some  distance,  and  who  had  now  gone 
home,  "The  circumstance,  however,"  said  the  land- 
lord, in  conclusion,  "  struck  me  so  very  strongly, 
that  I  could  not  refrain,  as  an  honest  man,  from 
coming  and  giving  you  information  of  it." 

Mr.  Brunell  was  duly  thanked  for  his  disclosure. 
There  appeared  from  it  the  strongest  reasons  for 
suspecting  Jennings  ;•  and  if,  on  searching  him,  any 
others  of  the  marked  guineas  should  be  found,  and 
the  gentleman  could  identify  them,  there  would  then 
remain  no  doubt  in  the  matter.  It  was  now  agreed 
to  go  up  to  his  room.  Jennings  was  fast  asleep  ;  his 


CIRCUMSTANTIAL    EVIDENCE.  7 

pockets  were  searched,  and  from  one  of  them  was 
drawn  forth  a  purse  containing  exactly  nineteen 
guineas.  Suspicion  now  became  certainty  ;  for  the 
traveler  declared  the  purse  and  guineas  to  be 
identically  those  of  which  he  had  been  robbed. 
Assistance  was  called  ;  Jennings  was  awakened, 
dragged  out  of  bed,  and  charged  with  the  robbery. 
He  denied  it  firmly  ;  but  the  circumstances  against 
him  were  too  strong,  and  he  was  not  believed.  He 
was  secured  that  night,  and  next  day  was  taken 
before  a  justice  of  the  peace.  The  gentleman  and 
Mr.  Brunell  deposed  to  the  facts  upon  oath ;  and 
Jennings,  having  no  proofs,  nothing  but  mere 
assertions  of  innocence,  which  could  not  be  credited, 
was  committed  to  take  his  trial  at  the  next  assizes. 
So  strong  seemed  the  case  against  him,  that  most 
of  the  man's  friends  advised  him  to  plead  guilty, 
and  throw  himself  on  the  mercy  of  the  court.  This 
advice  he  rejected,  and  when  arraigned,  pleaded  not 
guilty.  The  prosecutor  swore  to  the  fact  of  the  rob- 
bery ;  though,  as  it  took  place  in  the  dusk,  and  the 
highwayman  wore  a  mask,  he  could  not  swear  to  the 
person  of  the  prisoner,  but  thought  him  of  the  same 
stature  nearly  as  the  man  who  robbed  him.  To  the 
purse  and  guineas,  when  they  were  produced  in 
court,  he  swore — as  to  the  purse,  positively,  and  as 


8  FAMOUS    CASES    OF 

to  the  marked  guineas,  to  the  best  of  his  belief ;  and 
he  testified  to  their  having  been  taken  from  the 
pocket  of  the  prisoner. 

The  prisoner's  master,  Mr.  Brnnell,  deposed  as  to 
the  sending  of  Jennings  for  the  change  of  a  guinea, 
and  to  the  waiter's  having  brought  him  back  a 
marked  one  instead  of  the  one  he  had  given  him 
unmarked.  He  also  gave  evidence  as  to  the  discov- 
ery of  the  purse  and  guineas  on  the  prisoner.  To 
consummate  the  proof,  the  man  to  whom  Mr.  Brunell 
had  paid  the  guinea,  as  mentioned,  came  forward 
and  produced  the  coin,  testifying  at  the  same  time, 
that  he  had  received  it  on  the  evening  of  the  rob- 
bery, from  the  prisoner's  master,  in  payment  of  a 
debt ;  and  the  prosecutor,  on  comparing  it  with  the 
other  nineteen,  swore  to  its  being,  to  the  best  of  his 
belief,  one  of  the  twenty  marked  coins  taken  from 
him  by  the  highwayman,  and  of  which  the  other 
nineteen  were  found  on  Jennings. 

The  judge  summed  up  the  evidence,  pointing  out 
all  the  concurring  circumstances  against  the  prison- 
er ;  and  the  jury,  convinced  by  this  strong  accumula- 
tion of  testimony,  without  going  out  of  court,  brought 
in  a  verdict  of  guilty.  Jennings  was  executed  some 
time  afterwards,  at  Hull,  repeatedly  declaring  hia 
innocence  up  to  the  moment  of  his  execution. 


CIRCUMSTANTIAL    EVIDENCE.  9 

Within  a  twelvemonth  afterwards,  Brunell,  the 
master  of  Jennings,  was  himself  taken  up  for  a 
robbery  committed  on  a  guest  in  his  house,  and  the 
fact  being  proved  on  trial,  he  was  convicted  and 
ordered  for  execution.  The  approach  of  death 
brought  on  repentance  and  confession.  Brunell  not 
only  acknowledged  he  had  been  guilty  of  many 
highway  robberies,  but  owned  that  he  had  commit- 
ted the  very  one  for  which  Jennings  suffered.  The 
account  which  he  gave  was,  that  after  robbing  the 
traveler,  he  had  reached  home  before  him  by  swifter 
riding,  aod  by  a  nearer  way.  That  he  found  a  man 
at  home  waiting  for  him,  to  whom  he  owed  a  little 
bill,  and  to  whom,  not  having  enough  of  other  money 
in  his  pocket,  he  gave  away  one  of  the  guineas  which 
he  had  just  obtained  by  robbery.  Presently  came 
in  the  robbed  gentleman,  who,  whilst  Brunell,  not 
knowing  of  his  arrival,  was  in  the  stable,  told  his 
tale,  as  before  related,  in  the  kitchen.  The  gentle- 
man had  scarcely  left  the  kitchen  before  Brunell 
entered  it,  and  there,  to  his  consternation,  heard  of 
the  facts,  and  of  the  guineas  being  marked.  He 
became  dreadfully  alarmed.  The  guinea  which  he 
had  paid  away  he  dared  not  ask  back  again  ;  and 
as  the  affair  of  the  robbery,  as  well  as  the  circum- 
stance of  the  marked  guineas,  would  soon  become 


io  FAMOUS    CASES    OF 

publicly  known,  he  saw  nothing  before  him  but 
detection,  disgrace,  and  death.  In  this  dilemma,  the 
thought  of  accusing  and  sacrificing  poor  Jennings 
occurred  to  him.  The  state  of  intoxication  in  which 
Jennings  was,  gave  him  an  opportunity  of  concealing 
the  purse  of  money  in  the  waiter's  pocket.  The  rest 
the  reader  knows. 


CIRCUMSTANTIAL    EVIDENCE.  n 


III. 


JAMES  HAREIS  kept  a  public  house  within  eighteen 
miles  of  York,  having  in  his  service  a  man  named 
Morgan,  who,  to  his  other  occupations,  added  that  of 
gardener.  It  happened  that  one  Grey,  a  blacksmith, 
journeying  on  foot  to  Edinburgh,  supped  and  slept 
at  this  public  house.  Next  morning  Morgan  deposed 
before  a  magistrate,  that  his  master  strangled  Grey 
in  his  bed— that  he  actually  saw  him  commit  the 
murder — that  he  in  vain  endeavored  to  prevent  it, 
his  master  insisting  that  the  man  was  in  a  fit,  and 
that  he  was  merely  endeavoring  to  assist  him.  Mor- 
gan further  swore,  that,  affecting  to  believe  this,  he 
left  the  room ;  but  after  retiring,  looked  through  the 
keyhole,  and  saw  the  murderer  rifling  the  pockets  of 
the  deceased.  Harris,  as  well  he  might,  vehemently 
denied  the  accusation,  and,  haplessly  for  himself, 
threatened  a  prosecution  for  perjury.  As  no  mark 
of  violence  was  .visible  on  the  body,  Harris  was  on 
the  point  of  being  discharged,  when  the  maid-servant 
demanded  to  be  heard.  She  swore  that  from  a  wash 
house  window,  as  she  was  descending  the  stairs,  she 


12  FAMOUS    CASES    OF 

saw  her  master  take  some  gold  from  his  pocket,  and 
having  carefully  wrapped  it  np,  bury  it  under  a  tree 
in  the  garden,  the  position  of  which  she  indicated. 
Upon  this,  Harris  turned  pale,  and  the  earth  under 
the  tree  having  been  searched  by  a  constable,  thirty 
pounds  in  gold  was  found  wrapped  up  in  a  paper. 
Harris  then  admitted  that  he  had  buried  the  money 
for  security's  sake,  but  answered  in  so  confused  and 
hesitating  manner,  that  he  was  committed.  He  was 
tried  at.  York  for  the  murder.  The  man,  the  maid, 
the  constable,  and  the  magistrate,  were  all  examined, 
and  no  suspicion  attaching  to  their  testimony,  a  ver- 
dict of  guilty  was  at  once  pronounced.  He  died 
protesting  his  innocence,  and  ere  long  his  innocence 
became  manifest  to  all  men.  The  real  facts  were  as 
follows.  In  a  quarrel  between  Harris  and  his  ser- 
vant, Morgan  received  a  blow,  and  vowed  revenge. 
Soon  afterwards,  Grey's  arrival  furnished  the  oppor- 
tunity. The  part  which  the  servant  maid  played  in 
the  business  is  explained  by  the  fact  that  she  and  the 
gardener  were  sweethearts.  Seeing  her  master  one 
day  apparently  hiding  something  under  a  tree,  she 
apprised  Morgan,  who,  on  digging,  found  five 
guineas  concealed  there.  On  this,  they  agreed  to 
purloin  the  hoard,  when  it  should  amount  to  a  sum 
sufficient  to  enable  them  to  set  up  in  business.  But 


CIRCUMSTANTIAL    EVIDENCE.  13 

Harris's  threat  of  a  prosecution  for  perjury  so  terri- 
fied the  girl,  that  she  resolved  to  save  her  lover  by 
the  sacrifice  both  of  the  money  and  of  her  master's 
life.  A  subsequent  quarrel,  the  not  unusual  conse- 
quence of  guilt  like  theirs,  betrayed  the  truth. 
They  died  of  jail  fever,  on  the  day  previous  to 
that  appointed  for  their  trial.  It  was  afterwards 
ascertained  that  Grey  had  had  two  apoplectic  fits, 
and  had  never  been  in  possession  of  five  pounds 
at  a  time  in  his  life. 

In  this  melancholy  case,  it  will  be  observed  that 
the  victim  of  circumstantial  evidence  himself  uncon- 
sciously prepared  the  principal  fact  which  told 
against  him. 


FAMOUS    CASES    OF 


IV. 


THE  most  striking  case  of  circumstantial  evidence, 
in  which  the  testimony  against  the  accused  was 
altogether  fabricated  by  the  accuser,  is  one  taken 
from  the  Danish  records,  and  which,  from  its  im- 
pressiveness,  has  been  made  the  subject  of  remark 
by  both  Danish  and  German  writers.  The,  unhappy 
fate  of  the  clergyman,  Soren  Qvist,  is  familiar  to 
his  countrymen,  though  many  generations  have 
passed  away  since  the  events  which  are  about  to 
be  related. 

Soren  was  the  pastor  of  the  little  village  of 
Veilby,  situated  a  few  miles  from  Grenaee,  in  the 
Jutland  peninsula.  He  was  a  man  of  excellent 
moral  character,  generous,  hospitable,  and  diligent 
in  the  performance  of  his  sacred  duties  ;  but  he 
was  also  a  man  of  constitutionally  violent  temper, 
which  he  lacked  the  ability  to  restrain,  and  was 
consequently  subject  at  times  to  fierce  outbreaks  of 
wrath,  which  were  a  scourge  to  his  household 
when  they  occurred,  and  a  humiliation  to  himself. 
Like  most  Danish  clergymen  of  that  day,  he  was 


CIRCUMSTANTIAL    EVIDENCE.  15 

a  tiller  of  the  soil,  as  well  as  a  preacher  of  the 
word  ;  and  from  the  produce  of  his  tithes,  and  the 
cultivation  of  his  farm,  realized  a  comfortable  com- 
petence. He  was  a  widower  with  two  children — a 
daughter  who  kept  house  for  him,  and  a  son  hold- 
ing an  officer's  commission  in  the  army.  At  Ingvor- 
strup,  a  village  not  far  from  Veilby,  dwelt  a  cattle- 
farmer,  one  Morten  Burns,  who,  by  means  anything 
but  honest  and  honorable,  had  acquired  considerable 
property,  and  who  was  in  ill  repute  as  a  reckless 
self-seeker,  and  oppressor  of  the  poor.  This  man 
Morten  thought  fit  to  pay  court  to  the  pastor's 
daughter,  but  his  suit  was  rejected  by  both  parent 
and  child  ;  and  either  the  refusal,  or  the  manner  of 
it,  so  irritated  the  suitor  that  he  swore  secretly  to 
be  revenged  on  both. 

Some  months  later,  when  the  short-lived  suit  had 
been  forgotten,  the  pastor,  being  in  want  of  a  farm 
servant,  engaged  Niels  Burns,  a  poor  brother  of  the 
rich  Morten,  the  discarded  lover.  Niels  soon  showed 
himself  to  be  an  utterly  worthless  fellow,  lazy,  im- 
pudent, and  overbearing ;  and  the  result  was  a  con- 
stant recurrence  of  quarrels  and  mutual  recrimina- 
tions between  him  and  his  master.  Soren  on  more 
than  one  occasion  gave  the  fellow  a  thrashing,  which 
did  not  at  all  tend  to  improve  the  relations  between 


1 6  FAMOUS    CASES    OF 

them.  These  relations,  however,  were  destined  to 
come  to  a  speedy  close.  The  pastor  had  set  Niels 
to  dig  a  piece  of  ground  in  the  garden,  but  on  com- 
ing out  he  found  him  not  digging,  but  leisurely 
resting  on  his  spade  and  cracking  nuts  which  he 
had  plucked,  his  work  being  left  undone.  The 
pastor  scolded  him  angrily ;  the  man  retorted  that 
it  was  no  business  of  his  to  dig  in  the  garden  ;  at 
which  Soren  struck  him  twice  in  the  face,  and  the 
fellow,  throwing  down  the  spade,  retaliated  with  a 
volley  of  abuse.  Thereupon  the  old  man  lost  all 
self-control,  and  seizing  the  spade,  he  dealt  the  fellow 
several  blows  with  it.  Mels  fell  to  the  earth  like  one 
dead  ;  but  when  his  master  in  great  alarm  raised  him 
up  he  broke  away,  leaped  through  the  hedge,  and 
made  off  into  the  neighboring  wood.  From  that  time 
he  was  seen  no  more,  and  all  inquiries  after  him 
proved  vain.  The  above  was  the  pastor's  account 
of  the  facts. 

Ere  long  strange  rumors  began  to  circulate  in 
the  neighborhood,  and,  as  a  matter  of  course,  they 
reached  the  pastor' s  ears.  Morten  Burns  was  known 
to  have  said  that  "he  would  make  the  parson  pro- 
duce his  brother  even  if  he  had  to  dig  him  out  of 
the  earth."  Soren  was  intensely  pained  at  the 
calumny  implied,  and  instituted  at  his  own  expense 


CIRCUMSTANTIAL    EVIDENCE.  17 

a  quiet  search  after  the  missing  man — a  search  which 
failed  altogether.  Even  before  that  failure  was 
known,  Morten  Burns,  in  fulfillment  of  his  threat, 
applied  to  the  district  magistrate,  taking  with  him 
as  witnesses  one  Larsen,  a  cottager,  and  a  laborer's 
widow  and  daughter,  on  the  strength  of  whose 
testimony  he  declared  his  suspicion  that  the  pastor 
had  slain  his  brother.  The  magistrate  represented 
to  him  the  risk  he  ran  in  making  so  serious  a  charge 
against  the  clergyman,  and  advised  him  to  weigh 
the  matter  well  before  it  was  too  late.  But  Morten 
persisted  in  his  design,  and  the  statements  of  the 
witnesses  were  taken  down.  The  widow  Karsten 
deposed,  that  on  the  very  day  when  Niels  Bruns 
was  said  to  have  fled  from  the  parsonage,  she  and 
her  daughter  Else  had  passed  by  the  pastor's  garden 
about  the  hour  of  noon.  When  they  were  nearly 
in  front  of  the  hedge  which  encloses  it  on  the  eastern 
side,  they  heard  some  one  calling  Else.  It  was 
Niels,  who  was  on  the  other  side  of  the  hazel  bushes, 
and  who  now  bent  back  the  branches,  and  asked 
Else  if  she  would  have  some  nuts.  She  took  a 
handful,  and  then  asked  him  what  he  was  doing 
there?  He  answered,  that  the  pastor  had  ordered 
him  to  dig,  but  that  the  job  did  not  suit  him,  and 
he  preferred  cracking  nuts.  Just  then  they  heard  a 


1 8  FAMOUS    CASES    OF 

door  in  the  house  open,  and  Niels  said,  "Now, 
listen,  and  you  shall  hear  a  preachment."  Directly 
after  they  heard  (they  could  not  see,  because  the 
hedge  was  too  high  and  too  thick)  how  the  two 
quarreled,  and  how  the  one  paid  the  other  in  kind. 
At  last  they  heard  the  pastor  cry,  "I  will  beat 
thee,  dog,  until  thou  liest  dead  at  my  feet  !" 
Whereupon  there  were  sounds  as  of  blows,  and 
then  they  heard  Niels  calling  the  pastor  a  rogue 
and  a  hangman.  To  this  the  pastor  made  no  reply ; 
but  they  heard  two  blows,  and  they  saw  the  iron 
blade  of  a  spade  and  part  of  the  handle  swing  twice 
above  the  hedgerow,  but  in  whose  hands  they  could 
not  discern.  After  this  all  was  quiet  in  the  garden, 
and,  somewhat  alarmed  and  excited,  the  widow 
and  her  daughter  hurried  on  their  way. 

Larsen  disposed  that  on  the  evening  of  the  day 
following  that  of  the  disappearance  of  Niels,  as  he 
was  returning  home  very  late  from  Tolstrup,  and 
was  passing  along  the  footpath  which  flanks  the 
southern  side  of  the  pastor's  garden,  he  heard  from 
within  the  garden  the  sound  of  some  one  digging 
the  earth.  At  first  he  was  rather  startled  ;  but  see- 
ing that  it  was  clear  moonlight,  he  determined  to 
find  out  who  it  was  that  was  working  in  the  garden 
at  that  late  hour  ;  whereupon  he  slipped  off  his 


CIRCUMSTANTIAL    EVIDENCE.  19 

wooden  shoes,  climbed  up  the  hedge,  and  parted 
the  tops  of  the  hazel  bushes  so  as  to  enable  himself 
to  see.  Then  he  saw  the  pastor  in  the  green  dressing- 
gown  he  usually  wore,  and  with  a  white  night-cap 
on  his  head,  busied  in  leveling  the  earth  with  a 
spade  ;  but  more  than  this  be  did  not  see,  for  the 
pastor  turned  suddenly  round  as  if  some  sound 
had  struck  his  ear,  and  witness  being  afraid  of  de- 
tection, let  himself  down,  and  ran  away. 

When  the  witnesses  had  thus  disposed,  Morten 
demanded  that  the  parson  should  be  arrested. 
Wishing  to  avoid  such  a  scandal  if  possible,  the 
magistrate,  who  was  a  friend  of  Soren's,  proposed 
that  they  should  go  together  to  the  parsonage, 
where  they  would  probably  receive  a  satisfactory 
explanation  of  the  facts  deposed  to.  Morten  con- 
sented to  this,  and  the  party  set  out.  On  approach- 
ing the  house  they  saw  Soren  coming  to  meet  them 
— when  Morten  ran  forward,  and  bluntly  accused 
him  of  murdering  his  brother,  adding  that  he  was 
come  with  the  magistrate  to  make  search  for  the 
body.  The  pastor  made  him  no  reply,  but  courte- 
ously greeting  the  magistrate,  gave  directions  to 
the  farm  servants,  who  now  gathered  round,  to  aid 
by  all  the  means  in  their  power  the  search  about 
to  be  made.  Morten  led  the  way  into  the  garden, 


20  FAMOUS    CASES    OF 

and  after  looking  round  for  some  time,  pointed  to 
a  certain  spot  and  called  upon  the  men  to  dig 
there.  The  men  fell  to  work,  and  Morten  joined 
them,  working  with  a  show  of  frantic  eagerness. 
When  they  had  dug  to  a  little  depth  the  ground 
proved  so  hard  that  it  was  evident  it  had  not  been 
broken  up  for  a  long  while.  Soren  had  looked  on 
quite  at  ease,  and  now  he  said  to  Morten,  "Slanderer, 
what  have  you  got  for  your  pains?"  Instead  of 
replying,  Morten  turned  to  Larsen,  and  asked  him 
where  it  was  that  he  had  seen  the  parson  digging. 
Larsen  pointed  to  a  heap  of  cabbage  stalks,  dried 
haulms,  and  other  refuse,  and  said  he  thought  that 
was  the  place.  The  rubbish  was  soon  removed,  and 
the  men  began  digging  at  the  soil  beneath.  They 
had  not  dug  long,  when  one  of  them  cried  out, 
"Heaven  preserve  us!"  and  as  all  present  crowd- 
ed to  look,  the  crown  of  a  hat  was  visible  above 
the  earth.  "That  is  Mel's  hat!"  cried  Morten, 
"I  know  it  well — here  is  a  security  we  shall  find 
him!  Dig  away!"  he  shouted  with  fierce  energy, 
and  was  almost  as  eagerly  obeyed.  Soon  an  arm 
appeared,  and  in  a  few  minutes  the  entire  corpse 
was  disinterred.  There  could  be  no  doubt  that  it 
was  the  missing  man.  The  face  could  not  be  re- 
cognized, for  decomposition  had  commenced,  and 


CIRCUMSTANTIAL    EVIDENCE.  21 

the  features  had  been  injured  by  blows ;  but  all  his 
clothes,  even  unto  his  shirt  with  his  name  on  it, 
were  identified  by  his  fellow  servants ;  even  a  leaden 
ring  in  the  left  ear  of  the  corpse  was  recognized  as 
one  which  Niels  had  worn  for  years. 

There  was  no  alternative  but  to  arrest  the  pastor 
on  the  spot — indeed,  he  willingly  surrendered  him- 
self, merely  protesting  his  innocence.  "Appearances 
are  against  me,"  he  said;  "surely  this  must  be  the 
work  of  Satan  and  his  ministry ;  but  He  still  lives 
who  will  at  his  pleasure  make  my  innocence  mani- 
fest. Take  me  to  prison ;  in  solitude  and  in  chains 
I  will  await  what  He  in  his  wisdom  shall  decree." 

The  pastor  was  removed  to  the  goal  at  Grenaee 
the  same  night,  and  on  the  following  day  came  the 
judicial  examination.  The  first  three  witnesses  con- 
firmed their  former  statements  on  oath.  Moreover, 
there  now  appeared  three  additional  witnesses,  viz : 
the  pastor's  two  farm  servants  and  the  dairymaid. 
The  two  former  explained  how  on  the  day  of  the 
murder  they  had  been  sitting  near  the  open  window 
in  the  servant's  room,  and  had  heard  distinctly  how 
the  pastor  and  the  man  Neils  were  quarreling,  and 
how  the  former  had  cried  out,  "I  will  slay  thee, 
dog!  thou.  shalt  lie  dead  at  my  feet!"  They 
added  that  they  had  twice  before  heard  the  pastor 


22  FAMOUS    CASES     OF 

threaten  Niels  with  the  like.  The  dairymaid  de- 
posed that  on  the  night  when  Larsen  saw  the  pas- 
tor in  the  garden,  she  was  lying  awake  in  bed, 
and  heard  the  door  leading  from  the  passage  into 
the  garden  creak ;  and  that  when  she  rose  and 
peeped  out,  she  saw  the  pastor,  in  his  dressing- 
gown  and  night-cap,  go  out  into  the  garden.  What 
he  did  there  she  saw  not ;  but  about  an  hour  after- 
wards she  again  heard  the  creaking  of  the  door. 

When  asked  what  he  had  to  say  in  his  de- 
fense, the  pastor  replied  solemnly,  "So  help  me 
God,  I  will  say  nothing  but  the  truth.  I  struck 
deceased  with  the  spade,  but  not  otherwise  than 
that  he  was  able  to  run  away  from  me,  and  out  of 
the  garden ;  what  became  of  him  afterwards,  or 
how  he  came  to  be  buried  in  my  garden,  I  know 
not.  As  for  the  evidence  of  Larsen  and  the  dairy- 
maid, who  say  that  they  saw  me  in  the  garden  in  the 
night,  it  is  either  a  foul  lie  or  it  is  a  hellish  delu- 
sion. Miserable  man  that  I  am !  I  have  no  one 
on  earth  to  speak  in  my  defense — that  I  see  clearly  ; 
if  He  in  heaven  likewise  remains  silent,  I  have  only 
to  submit  to  His  inscrutable  will." 

When,  some  weeks  later,  the  trial  came  on, 
two  more  fresh  witnesses  were  produced.  They  de- 
clared that  on  the  oft-mentioned  night  they  were  pro- 


CIRCUMSTANTIAL  EVIDENCE.  23 

ceeding  along  the  road  which  runs  from  the  pastor's 
garden  to  the  wood,  when  they  met  a  man  carry- 
ing a  sack  on  his  back,  who  passed  them  and 
walked  on  in  the  direction  of  the  garden.  His  face 
they  could  not  see,  inasmuch  as  it  was  concealed  by 
the  overhanging  sack ;  but  as  the  moon  was 
shining  on  his  back,  they  could  plainly  descry  that 
he  was  clad  in  a  pale  green  coat  and  a  white  night- 
cap. He  disappeared  near  the  pastor's  garden 
hedge.  No  sooner  did  the  pastor  hear  the  evidence 
of  the  witness  to  this  effect  than  his  face  turned  an 
ashy  hue,  and  he  cried  out  in  a  faltering  voice,  "I 
am  fainting!"  and  was  so  prostrated  in  body  that 
he  had  to  be  taken  back  to  prison.  There,  after 
a  period  of  severe  suffering,  to  the  intense  astonish- 
ment of  every  one,  he  made,  to  his  friend,  the  dis- 
trict magistrate  who  had  first  arrested  him,  the  fol- 
lowing strange  confession: — "From  my  childhood, 
as  far  back  as  I  can  remember,  I  have  ever  been 
passionate,  quarrelsome,  and  proud — impatient  of 
contradiction,  and  ever  ready  with  a  blow.  Yet 
have  I  seldom  let  the  sun  go  down  on  my  wrath,  nor 
have  I  borne  ill-will  to  any  one.  When  but  a  lad 
I  slew  in  anger  a  dog  which  one  day  ate  my  dinner, 
which  I  had  left  in  his  way.  When,  as  a  student,  I 
went  on  foreign  travel,  I  entered,  on  slight  provoca- 


24  FAMOUS    CASES    OF 

tion,  into  a  broil  with  a  German  youth  in  Leipsic, 
challenged  him,  and  gave  him  a  wound  that  endan- 
gered his  life.  For  that  deed,  I  feel  it,  I  merited 
that  which  has  now  come  upon  me  after  long  years  ; 
but  the  punishment  falls  upon  my  sinful  head  with 
tenfold  weight  now  that  I  am  broken  down  with  age, 
a  clergyman,  and  a  father.  Oh,  Father  in  heaven ! 
it  is  here  that  the  wound  is  sorest." 

After  a  pause  of  anguish,  he  continued  :  UI  will 
now  confess  the  crime  which  no  doubt  I  have  com- 
mitted, but  of  which  I  am,  nevertheless,  not  fully 
conscious.  That  I  struck  the  unhappy  man  with  the 
spade  I  know  full  well,  and  have  already  con- 
fessed ;  whether  it  were  with  the  flat  side  or  with  the 
sharp  edge  I  could  not  in  my  passion  discern ; 
that  he  then  fell  down,  and  afterwards  again  rose 
up  and  ran  away — that  is  all  that  I  know  to  a 
surety.  What  follows — heaven  help  me  ! — four  wit- 
nesses have  seen ;  namely,  that  I  fetched  the 
corpse  from  the  wood  and  buried  it ;  and  that  this 
must  be  substantially  true  I  am  obliged  to  believe, 
and  I  will  tell  you  wherefore.  Three  or  four  times 
in  my  life,  that  I  know  of,  it  has  happened  to  me 
to  walk  in  my  sleep.  The  last  time  (about  nine  years 
ago),  I  was  next  day  to  preach  a  funeral  sermon 
over  the  remains  of  a  man  who  had  unexpectedly 


CIRCUMSTANTIAL    EVIDENCE.  25 

met  with  a  dreadful  death.  I  was  at  a  loss  for  a 
text,  when  the  words  of  a  wise  man  among  the 
ancient  Greeks  suddenly  occurred  to  me,  'Call  no 
man  happy  until  he  be  in  his  grave.'  To  use  the 
words  of  a  heathen  for  the  text  of  a  Christian  dis- 
course, was  not,  methought,  seemly ;  but  I  then 
remembered  that  the  same  thought,  expressed  in 
well-nigh  the  same  terms,  was  to  be  met  with  some- 
where in  the  Apocrypha.  I  sought,  and  sought,  but 
could  not  find  the  passage.  It  was  late,  I  was 
wearied  by  much  previous  labor  ;  I  therefore  went  to 
bed,  and  soon  fell  asleep.  Greatly  clid  I  marvel  the 
next  morning  when,  on  arising  and  seating  myself 
at  my  writing  desk,  I  saw  before  me,  written  in 
large  letters  in  a  piece  of  paper,  '  Let  no  man  be 
deemed  happy  before  his  end  cometh  (Syrach  xi. 
34).'  But  not  this  alone  ;  I  found  likewise  a  funeral 
discourse — short,  but  as  well  written  as  any  I  had 
ever  composed — and  all  in  my  own  handwriting. 
In  the  chamber  none  other  than  I  could  have  been. 
I  knew,  therefore,  who  it  was  that  had  written  the 
discourse  ;  and  that  it  was  no  other  than  myself. 
Not  more  than  half  a  year  previous,  I  had,  in  the 
same  marvelous 'state,  gone  in  the  night  time  into  the 
church,  and  fetched  away  a  handkerchief  which  I 
had  left  in  the  chair  behind  the  altar.  Mark  now — 


26  FAMOUS    CASES    OF 

when  the  two  witnesses  this  morning  delivered 
their  evidence  before  the  court,  then  my  previous 
sleep-walkings  suddenly  flashed  across  me ;  and 
I  likewise  called  to  mind  that  in  the  morning 
after  the  night  during  which  the  corpse  must  have 
been  buried,  I  had  been  surprised  to  see  my  dressing- 
gowD  lying  on  the  floor  just  inside  the  door,  whereas 
it  was  always  my  custom  to  hang  it  on  a  chair 
by  my  bedside.  The  unhappy  victim  of  my  un- 
bridled passion  must,  in  all  likelihood,  have  fallen 
down  dead  in  the  wood  ;  and  I  must  in  my  sleep- 
walking have  followed  him  thither.  Yes — the  Lord 
have  mercy  ! — so  it  was,  so  it  must  have  been." 

On  the  following  day  sentence  of  death  was 
passed  upon  the  prisoner — a  sentence  which  many 
felt  to  be  too  severe,  and  which  led  to  a  friendly  con- 
spiracy on  his  behalf ;  and  had  it  not  been  for  his 
own  refusal  to  be  a  party  to  anything  unlawful,  he 
might  have  escaped.  The  jailer  was  gained  '  over, 
and  a  fisherman  had  his  boat  in  readiness  for  a  flight 
to  the  Swedish  coast,  where  he  would  have  been 
beyond  the  reach  of  danger.  But  Soren  Qvist  refused 
to  flee.  He  longed,  he  said,  for  death  ;  and  he  would 
not  add  a  new  stain  to  his  reputation  by  a  furtive 
flight.  He  maintained  his  strength  of  mind  to  the 
last,  and  from  the  scaffold  he  addressed  to  the  by- 


CIRCUMSTANTIAL     EVIDENCE.  27 

standers  a  discourse  of  much  power,  which  he  had 
composed  in  prison  during  his  last  days.  It  treated 
of  anger  and  its  direful  consequences,  with  touching 
allusions  to  himself  and  the  dreadful  crime  to  which 
his  anger  misled  him.  Thereafter,  he  doffed  his 
coat,  bound  with  his  own  hands  the  napkin  before 
his  eyes,  and  submitted  his  neck  to  the  execu- 
tioner's sword. 

One-and-twenty  years  after  the  pastor,  Soren  Qvist 
of  Veilby,  had  been  accused,  tried,  condemned, 
and  executed  for  the  murder  of  his  serving-man,  an 
old  beggarman  applied  for  alms  to  the  people  of 
Aalsoe,  the  parish  adjoining  to  Yeilby.  Suspi- 
cions were  aroused  by  the  exact  likeness  the  beggar- 
man bore  to  Morten  Bruns,  of  Ingvorstrup,  who  had 
lately  died,  and  also  by  the  curious  and  anxious  in- 
quiries the  man  made  concerning  events  long  past. 
The  pastor  of  Aalsoe,  who  had  buried  Morten  Bruns, 
took  the  vagabond  to  his  parsonage,  and  there  the 
fellow,  all  unconscious  of  the  portentous  nature 
of  the  admission,  acknowledged  that  he  was  Niels 
Bruns,  the  very  man  for  whose  supposed  murder  the 
pastor  had  suffered  the  shameful  death  of  a  crimi- 
nal. Had  his  brother  Morten  survived  him,  it  is 
pretty  certain  the  truth,  concealed  so  long,  had  never 
been  known,  as  Niels  had  only  returned  to  the  dis- 


28  FAMOUS    CASES    OF 

trict  in  the  hope  of   profiting  by  Morten's  death, 
the  news  of  which  had  accidentally  reached  him.    He 
professed— and,  indeed,  plainly  experienced— the  ut- 
most  horror    on    hearing   the    dreadful    history  of 
the  pastor' s  cruel  fate.     It  was  all  Morten' s  doing,  he 
said ;  but  he  was  so  overcome  by  the  terrible  nar- 
rative that  he  could  scarcely  gather  strength  to  reply 
to  the  questions  put  to  him.     The  result  of  his  exam 
ination    and  confession   may  be  summed  up  very 
briefly.     Morten  had  conceived  a  mortal  hatred  of 
Soren  Qvist  from  the  time  that  he  refused  him  his 
daughter,  and  had  determined  on  revenge.     It  was  he 
who  compelled  Niels  to  take  service  with  the  pas- 
tor ;     he    had    spurred   him    on   to    the    repeated 
offenses,    in   the  expectation    that    violence    would 
result,  owing  to  the  pastor' s  hasty  temper  ;  and  had 
carefully  nursed  the  feud  which  soon  arose  between 
master  and  man.     Niels  told  him  daily  all  that  took 
place.     On  leaving  the  garden,  on  that  fatal  day,  he 
had  run  over  to  Ingvorstrup  to  acquaint  his  brother 
with  what  had  happened.     Morten  shut  him  up  in  a 
private  room  that  no  one  might  see  him.     Shortly 
after  midnight,  when  the  whole  village  was  asleep, 
the  two  brothers  went  to  a  place  where  the  roads 
cross  each  other,  and  where  two  days  previously  a 
suicide  had  been  buried — a  young   man  of  about 


CIRCUMSTANTIAL    EVIDENCE.  29 

Niels'  age  and  stature.  In  spite  of  Niels'  reluctance 
and  remonstrance  they  dug  up  the  corpse  and  took  it 
into  Morten's  house.  Niels  was  made  to  strip  and 
don  a  suit  of  Morten's,  and  the  corpse  was  clad, 
piece  by  piece,  in  Niels'  cast-off  clothes,  even  to  the 
very  ear-ring.  Then  Morten  battered  the  dead  face 
with  a  spade,  and  hid  it  in  a  sack  until  the  next 
night,  when  they  carried  it  into  the  wood  by  Yeilby 
parsonage.  Niels  asked  what  all  these  preparations 
meant.  Morten  told  him  to  mind  his  own  business, 
and  to  go  and  fetch  the  parson's  green  dressing- 
gown  and  cap.  This  Niels  refused  to  do,  where- 
upon Morten  went  and  fetched  them  himself.*  "And 
now,"  he  said  to  his  brother,  "you  go  your  way. 
Here  is  a  purse  with  a  hundred  dollars — make  for  the 
frontier,  where  no  one  knows  thee  ;  pass  thyself 
under  another  name,  and  never  set  thy  foot  on 
Danish  soil  again  as  thou  wouldst  answer  it  with 
thy  life ! "  Niels  did  as  he  was  commanded,  and 
parted  from  Morten  forever.  He  had  enlisted  for  a 
soldier,  had  suffered  great  hardships,  had  lost  a  limb, 
and  had  returned  to  his  native  place  a  mere  wreck. 

*  It  was  not  the  custom  in  Jutland,  in  those  days — it  is  hardly 
the  custom  now — to  lock  up  the  house  at  night. 


30  FAMOUS    CASES    OF 


V. 


THOMAS  GEDDELY  was  a  waiter  in  a  public  house 
kept  by  a  Mrs.  Williams  at  York,  and  much  fre- 
quented. The  landlady  was  a  bustling  woman,  a 
favorite  with  her  customers,  and  had  the  reputation 
of  being  well-to-do.  One  morning  it  was  found  that 
her  scrutoire  had  been  broken  open  and  rifled  of  a 
considerable  sum  ;  and  as  on  that  same  morning 
Thomas  Geddely  did  not  make  his  appearance,  every- 
body concluded  that  he  was  the  robber.  A  year 
afterwards,  or  thereabouts,  a  man  came  to  York  who, 
under  the  name  of  James  Crow,  plied  for  employ- 
ment as  a  porter,  and  thus  picked  up  a  scanty  living  ' 
for  a  few  days.  Meanwhile,  from  his  unlucky  like- 
ness to  Geddely  he  began  to  be  mistaken  for  the  thief. 
Many  people  addressed  him  as  Tom  Geddely,  and 
when  he  declared  that  he  did  not  know  them,  that 
his  name  was  James  Crow,  and  that  he  had  never 
lived  in  York  before,  they  would  not  believe  him, 
and  attributed  his  denial  to  his  natural  desire  to 
escape  the  consequences  of  the  robbery  he  had  com- 
mitted at  the  public  house. 


CIRCUMSTANTIAL    EVIDENCE.  31 

When  subsequently  Ms  mistress  was  sent  for,  she 
singled  him  out  from  a  number  of  people,  and  calling 
him  Geddely,  upbraided  him  with  his  ingratitude, 
and  charged  him  with  robbing  her.  When  dragged 
before  the  justice  of  the  peace,  and  examined  in  his 
presence,  the  man  affirmed,  as  stoutly  as  any  man 
could,  that  his  name  was  not  Geddely,  that  he  had 
never  known  any  person  of  that  name,  that  he  had 
never  in  his  life  lived  in  York  before,  and  that  his 
name  was  James  Crow.  He  could  not,  however,  get 
any  one  else  to  substantiate  his  affirmations ;  he 
could  give  but  a  poor  account  of  himself,  but  was 
forced  to  admit  that  he  led  a  vagabond  life — and  as 
the  landlady  and  others  swore  positively  to  his  per- 
son, he  was  committed  to  jail  at  York  Castle  to 
await  his  trial  at  the  next  assizes.  When,  in  due 
time,  the  trial  came  on,  he  pleaded  "not  guilty,"  and 
denied  as  before  that  he  was  the  person  he  was  taken 
for ;  but  the  landlady  of  the  inn  and  several  other 
witnesses  swore  positively  that  he  was  the  identical 
Thomas  Geddely  who  was  waiter  when  she  was 
robbed  ;  while  a  servant  girl  deposed  that  she  had  seen 
him  on  the  very  morning  of  the  robbery  in  the  room 
where  the  scrutoire  was  broken  open,  with  a  poker  in 
his  hand.  As  the  prisoner  had  nothing  to  urge 
against  the  evidence  but  a  simple  denial,  and  as  he 


32  FAMOUS    CASES    OF 

could  not  prove  an  alibi,  he  was  found  guilty  of  the 
robbery,  was  condemned  to  death,  and  executed. 
He  persisted  to  his  latest  breath  in  affirming  that  he 
was  not  Thomas  Geddely,  and  that  his  name  was 
Crow. 

The  truth  of  the  poor  fellow's  declaration  was 
established  all  too  late.  Not  long  after  Crow's 
unjust  punishment,  the  real  Thomas  Geddely,  who, 
after  the  robbery,  had  fled  from  York  to  Ireland,  was 
taken  up  in  Dublin  for  a  crime  of  the  same  stamp, 
and  there  condemned  and  executed.  Between  his 
conviction  and  execution,  and  again  at  the  fatal  tree, 
he  confessed  himself  to  be  the  very  Thomas  Geddely 
who  had  committed  the  robbery  at  York  for  which 
the  unfortunate  James  Crow  had  suffered.  A  gentle- 
man, a  native  of  York,  who  happened  to  be  at 
Dublin  at  the  time  of  Geddely' s  trial  and  execution, 
and  who  knew  him  when  he  lived  with  Mrs.  Wil- 
liams, declared  that  the  resemblance  between  the  two 
men  was  so  remarkable  that  it  was  next  to  impossible 
to  distinguish  their  persons  assunder. 


CIRCUMSTANTIAL    EVIDENCE.  33 


VI. 


ONE  of  the  most  lamentable  cases  of  mistaken 
identity  was  that  of  Lesurques,  the  history  of  which 
may  be  summed  up  as  follows  : 

In  the  month  of  April,  1796,  a  young  man  named 
Joseph  Lesurques  arrived  in  Paris  from  Douai,  his 
native  town.  He  was  thirty-three  years  of  age.  and 
possessed  a  fortune  equal  to  six  hundred  pounds  a 
year.  He  hired  apartments,  and  made  preparations 
for  residing  permanently  in  Paris.  One  of  his  first 
cares  was  to  repay  one  Guesno,  of  Douai,  two  thou- 
sand francs  he  had  borrowed  of  him.  On  the  follow- 
ing day  Guesno  invited  Lesurques  to  breakfast. 
They  accordingly  went  to  a  refreshment  room,  in 
company  with  two  other  persons,  one  of  whom, 
named  Couriol,  happened  to  call  just  as  they  were 
sitting  down  to  table.  After  breakfast  they  pro- 
ceeded to  the  Palais  Royal,  and  having'  taken  coffee, 
separated.  Four  days  afterwards,  four  horsemen, 
mounted  on  hired  horses,  were  seen  to  drive  out  of 
Paris.  They  all  wore  long  cloaks  and  sabres  hang- 
ing from  the  waist.  One  of  the  party  was  Couriol. 


34  FAMOUS    CASES    OF 

Between  twelve  and  one  o'clock  the  four  horsemen 
arrived  at  the  village  of  Mongeron,  on  the  road  to 
Melun.  There  they  dined,  and  then  proceeded  at  a 
foot  pace  towards  Lieursaint.  They  reached  Lieur- 
saint  about  three  in  the  afternoon,  and  made  a  long 
halt  at  the  inn,  amusing  themselves  with  billiards, 
and  one  of  them  having  his  horse  shod.  At  half- 
past  seven  they  remounted  and  rode  off  towards 
Melun.  About  an  hour  later  the  mail  courier  from 
Paris  to  Lyons  arrived  to  change  horses.  It  was  then 
half-past  eight,  and  the  night  had  been  for  some  time 
dark.  The  courier,  having  changed  horses,  set  out  to 
pass  the  long  forest  of  Leuart.  The  mail  at  this 
period  was  a  sort  of  post-chaise,  with  a  large  trunk 
behind  containing  the  dispatches.  There  was  one 
place  only  open  to  the  public,  at  the  side  of  the 
courier ;  and  the  place  was  occupied  on  that  day  by 
a  man  about  thirty  years  of  age,  who  had  that  morn- 
ing taken  it  in  the  name  of  Laborde. 

The  next  morning  the  mail  was  found  rifled,  the 
courier  dead  in  his  seat,  and  the  postilion  lying  dead 
in  the  road — both  being  evidently  slain  with  sabres. 
One  horse  only  was  found  near  the  carriage.  The 
mail  had  been  robbed  of  seventy -five  thousand  livres 
in  silver  and  bank  bills.  The  officers  of  justice  soon 
discovered  that  five  persons  had  passed  through  the 


CIRCUMSTANTIAL    EVIDENCE.  35 

barrier  on  their  way  to  Paris  between  four  and  five  in 
the  morning  after  the  murders.  The  horse  of  the 
postilion  was  found  wandering  about  the  Place 
Royale ;  and  they  ascertained  that  four  horses,  cov- 
ered with  foam  and  quite  exhausted,  had  been 
brought,  about  five  in  the  morning,  to  a  man  named 
Muiron,  Rue  des  Fosses,  Saint  Germain  1'  Auxerrois, 
by  two  persons  who  had  hired  them  the  day  before. 
These  two  persons  were  named  Bernard  and  Couriol. 
Bernard  was  immediately  arrested  ;  Couriol  escaped. 
A  description  was  obtained  of  the  four  who  had 
ridden  from  Paris  and  stopped  at  Mongeron  and 
Lieursaint,  and  also  of  the  man  who  had  taken  his 
place  with  the  courier  under  the  name  of  Laborde. 
Couriol  was  traced  to  Chateau  Thierry,  where  he  was 
arrested,  together  with  Guesno,  the  Douai  carrier, 
and  one  Bruer,  who  happened  to  be  in  the  same 
house.  Guesno  and  Bruer  proved  alibis  so  clearly 
that  they  were  discharged  on  arriving  at  Paris. 

The  magistrate,  after  discharging  Guesno,  told 
him  to  apply  at  his  office  the  next  morning  for  the 
return  of  his  papers,  which  had  been  seized  at 
Chateau  Thierry  ;  at  the  same  time  he  had  sent  a 
police  officer  to  Mongeron  and  Lieursaint  to  fetch  the 
witnesses,  of  whom  he  gave  a  list.  Guesno,  being 
desirous  to  obtain  his  papers  as  soon  as  possible,  left 


36  FAMOUS    CASES    OF 

home  the  next  day  earlier  than  usual.  On  his  way  to 
the  office  he  met  Lesurques,  who  consented  to  ac- 
company him.  They  went  to  the  office,  and  as  Dau- 
benton,  the  Juge-de-Paix,  had  not  yet  arrived,  they 
sat  down  in  the  antechamber  to  await  his  arrival. 
About  two  o'clock  the  Juge-de-Paix,  who  had  entered 
his  room  by  a  back  door,  was  thunderstruck  on  being 
told  by  the  police  officer  who  had  come  back  with  the 
witnesses,  that  two  of  them  declared  that  two  of  the 
actual  murderers  were  in  the  house.  "Impossible  ! " 
he  exclaimed,  "guilty  men  would  not  voluntarily 
venture  here."  Not  believing  the  statement  he 
ordered  the  two  women  to  be  introduced  separately  ; 
and  examined  each  of  them,  when  they  repeated 
their  statement  and  declared  they  could  not  be 
mistaken.  Warning  them  solemnly  that  life  and 
death  depended  on.  their  truth,  he  had  the  accused 
brought  into  the  room  one  by  one,  and  after  convers- 
ing with  them  sent  them  again  to  the  antechamber, 
where  they  waited  as  before.  When  they  had  left 
the  room  the  magistrate  again  asked  the  women  if 
they  persisted  in  their  previous  declarations.  They 
did  persist ;  their  evidence  was  taken  down  in  writ- 
ing ;  and  the  two  frrends  were  immediately  arrested. 
No  time  was  lost  in  pushing  on  the  prosecution. 
Seven  persons  were  put  upon  their  trial,  amongst 


CIRCUMSTANTIAL    EVIDENCE.  37 

whom  were  Couriol,  Madeline  Breban  (his  mistress), 
Lesurques,  and  Guesno.  Lesurques  was  sworn  to 
most  positively  by  several,  as  being  one  of  the  party, 
at  different  places  on  the  road,  on  the  day  of  the 
robbery  and  murder.  It  should  be  born  in  mind  that 
the  case  was  quite  conclusive  against  Couriol.  "I 
attended  them  (said  one  witness)  at  dinner  at  Mon- 
geron  ;  this  one  (Lesurques)  wanted  to  pay  the  bill  in 
assignats,  but  the  tall  dark  one  (Couriol)  paid  it  in 
silver."  A  stable  boy  at  Mongeron  also  identified 
him.  A  woman  named  Alfroy,  of  Lieursaint,  and 
the  innkeeper  and  his  wife  of  the  same  place,  all 
recognized  him  as  of  the  party  there — Lesurques 
declaring  that  he  had  never  been  present  at  either 
place.  But  the  witnesses  were  positive,  were  unim- 
peached,  were  believed,  and  —  were  all  mistaken. 
Lesurques  and  Couriol  were  convicted,  Guesno, 
though  as  positively  sworn  to,  proved  his  perfect 
innocence,  and  was  acquitted.  Lesurques  called 
fifteen  persons  of  known  probity  to  prove  an  alibi, 
which  was  disbelieved  in  consequence  of  the  folly  of 
one  of  them,  who  falsified  an  entry  in  his  book  with 
the  design  of  adding  weight  to  the. evidence  in  Lesur- 
qufs's  favor,  but  did  it  so  clumsily  that  the  falsifica- 
tion was  discovered.  Eighty  persons  of  all  classes 
declared  the  character  of  Lesurques  to  be  irre- 


38  FAMOUS    CASES    OF 

proachable  ;  but  all  was  of  no  avail — lie  was  con- 
demned. 

When  the  sentence  was  pronounced,  rising  from 
his  place,  he  calmly  said — "I  am  innocent  of  the 
crime  imputed  to  me.  Ah,  citizens !  if  murder  on 
the  highway  be  atrocious,  it  is  not  less  a  crime  to 
execute  an  innocent  man." 

Madeline  Breban,  though  compromising  herself, 
wildly  exclaimed — "Lesurques  is  innocent  —  he  is 
the  victim  of  his  fatal  likeness  to  Dubosq." 

Couriol  then,  addressing  the  judges,  said — "  I  am 
guilty ;  I  acknowledge  my  crime  ;  my  accomplices 
were  Vidal,  Rossi,  Durochat,  and  Dubosq  ;  but 
Lesurques  is  innocent." 

After  the  sentence  had  been  pronounced,  the 
horror-stricken  Madeline  again  presented  herself  be- 
fore the  judges  to  reiterate  her  declaration,  and  two 
other  witnesses  attested  to  her  having  told  them  so 
before  the  trial.  The  judges  applied  to  the  Directory 
for  a  reprieve  ;  and  the  Directory  applied  to  the 
Council  of  Five  Hundred,  requesting  instructions  for 
their  guidance,  and  concluding  with  the  emphatic 
question — "Ought  Lesurques  to  die  on  the  scaffold 
because  he  resembles  a  criminal  ?"  The  answer  was 
prompt:  "The  jury  had  legally  sentenced  the  ac- 
cused, and  the  right  of  pardon  had  been  abolished." 


CIRCUMSTANTIAL    EVIDENCE.  39 

Left  to  his  fate,  poor  Lesurques  on  the  morning 
of  his  execution  thus  wrote  to  his  wife: — "My  dear 
friend,  we  cannot  avoid  our  fate.  I  shall,  at  any 
rate,  endure  mine  with  the  courage  which  becomes' 
a  man.  I  send  some  locks  of  my  hair.  When  my 
children  are  older,  divide  it  with  them.  It  is  the 
only  thing  that  I  can  leave  them." 

Couriol  had  disclosed  to  Lesurques  the  history 
of  Dubosq,  and  the  fatal  mistake  which  had  been 
made,  and  accordingly,  on  the  eve  of  his  death,  he 
had  the  following  mournful  letter  inserted  in  the 
journals:  "Man,  in  whose  place  I  am  to  die,  be 
satisfied  with  the  sacrifice  of  my  life ;  if  you  be  ever 
brought  to  justice,  think  of  my  three  children 
covered  with  shame,  and  of  their  mother's  despair, 
and  do  not  prolong  the  misfortunes  of  so  fatal  a 
resemblance." 

On  the  10th  of  March,  1797,  Lesurques  went  to 
the  place  of  execution  dressed  completely  in  white, 
as  a  symbol  of  his  innocence.  On  the  way  from  the 
prison  to  the  place  of  execution,  Couriol,  who  was 
seated  in  the  car  beside  him,  cried  in  a  loud  voice, 
addressing  the  people,  "I  am  guilty  ;  but  Lesurques 
is  innocent."  On  reaching  the  scaffold,  Lesurques 
gave  himself  up  to  the  executioners,  and  died  pro- 
testing his  innocence. 


40  FAMOUS    CASES    OF 

In  consequence  of  his  own  misgivings,  and  of 
mnrmnrs  on  the  part  of  the  public,  Daubenton,  the 
Juge-de-Paix,  who  had  arrested  Lesurques,  and 
conducted  the  first  proceedings,  resolved  to  investi- 
gate the  truth,  which  could  only  be  satisfactorily 
done  through  the  arrest  and  trial  of  the  four  per- 
sons denounced  by  Couriol  as  his  accomplices. 
Two  years  elapsed  in  vain  inquiries.  At  the  end 
of  that  time,  he  discovered  that  Durochat — the 
man  who,  under  the  name  of  Laborde,  had  taken 
the  place  by  the  side  of  the  courier— had  been 
arrested  for  a  robbery,  and  lodged  in  St.  Pelagie. 

When  the  trial  of  the  villain  came  on,  he  was, 
through  the  exertions  of  Daubenton,  recognized  by 
the  inspector  of  the  mails  as  the  man  who  traveled 
with  the  courier  on  the  day  of  the  assassination. 
When  charged  with  the  fact,  he  made  at  first  some 
faint  denials,  and  subsequently  he  confessed,  relating 
the  particulars  of  the  crime,  all  which  tallied  with  the 
statements  made  by  Couriol.  He  stated  that  Yidal 
had  projected  the  affair,  and  had  communicated  it  to 
him  as  a  restaurant  in  the  Champs  Elysees.  The 
criminals  were  Couriol,  Rossi,  (alias  Beroldy), 
Vidal,  himself,  and  Dubosq.  Dubosq  had  forged 
for  him  the  passport  in  the  name  of  Laborde,  by 
means  of  which  he  easily  procured  another  for 


CIRCUMSTANTIAL    EVIDENCE.  41 

Lyons,  to  enable  him  to  take  his  place  in  the  mail. 
Bernard  had  supplied  the  four  horses.  They  had 
attacked  the  carriage  as  the  postilion  was  slackening 
his  pace  to  ascend  the  hill.  It  was  he  (Durochat) 
who  had  stabbed  the  courier,  at  the  instant  that 
Rossi  cut  down  the  postilion  with  a  sabre ;  Rossi 
had  then  given  up  his  horse  to  him  (Durochat),  and 
had  returned  to  Paris  on  that  of  the  postilion.  As 
soon  as  they  arrived  there,  they  all  met  at  Dubosq's 
lodgings,  where  they  proceeded  to  divide  the  booty. 
Bernard,  who  had  only  procured  the  horses,  was 
there,  and  claimed  his  share,  and  got  it.  "I  have 
heard,"  he  added,  "that  there  was  a  fellow  named 
Lesurques  condemned  for  this  business ;  but,  to 
tell  the  truth,  I  never  knew  the  fellow,  either  at 
the  planning  of  the  affair,  or  at  its  execution,  or 
at  the  division  of  the  spoil." 

Such  was  Durochat' s  confession  as  taken  down 
in  writing;  he  added  a  description  of  Dubosq, 
stating  that  on  the  day  of  the  murder  he  wore  a 
blonde  wig. 

Shortly  after  the  arrest  of  Durochat,  Yidal  was 
also  arrested.  He  was  recognized  by  the  witnesses 
and  positively  sworn  to,  but  he  denied  everything, 
and  was  sent  to  the  prison  of  La  Seine.  Towards 
the  end  of  the  year  1799,  Dubosq,  having  been 


42  FAMOUS    CASES    OF 

arrested  for  a  robbery  in  the  department  of  Allier, 
was  recognized  in  the  prison  and  brought  to  Ver- 
sailles to  be  tried  at  the  same  time  as  Yidal  before 
the  criminal  tribunal.  It  was  seen  by  the  registers 
that  Dubosq  was  a  thorough  desperado;  he  had 
been  sentenced  to  the  galleys  for  life,  but  had 
escaped,  and  on  four  several  occasions  had  broken 
prison.  Like  Vidal,  he  denied  everything.  Con- 
fined in  the  same  cell  with  his  old  companion  in 
guilt,  Dubosq  planned  an  escape  ;  but  this  time  he 
broke  his  leg  in  the  attempt — Vidal  alone  getting 
clear  away — to  be  retaken,  however,  after  a  brief  in- 
terval, to  be  brought  back  to  trial — and  to  execution. 
Strange  as  it  may  seem,  Dubosq  had  no  sooner 
recovered  from  his  fracture,  than  he  found  another 
opportunity  of  attempting  an  escape,  and  for  the 
sixth  time  succeeded  in  breaking  his  bonds.  As  he 
could  not  live  without  rapine,  however,  he  fell  again 
into  the  hands  of  the  police  before  the  expiration 
of  a  year,  and  was  brought  before  the  tribunal  at 
Versailles.  The  president  ordered  a  blonde  wig  to 
be  put  on  his  head,  and  thus  attired,  he  was 
recognized  by  the  same  witnesses  who  had  sworn 
away  the  life  of  Lesurques,  who  now  recanted  their 
former  testimony,  and  declared  too  late  that  they 
had  been  mistaken. 


CIRCUMSTANTIAL    EVIDENCE.  43 

After  the  execution  of  Dubosq,  in  Febuary,  1802, 
there  still  remained  one  of  the  accomplices  to  be 
brought  to  justice.  This  man,  Rossi,  whose  real 
name  was  Beroldy,  was  at  length  discovered  near 
Madrid,  and  was  given  up  to  the  French  govern- 
ment. Unlike  Yidal  and  Dubosq,  he  confessed  his 
crimes,  testifying  the  utmost  remorse.  In  the 
declaration,  which  he  confided  to  his  confessor, 
he  affirmed  the  entire  innocence  of  Lesurques ;  but, 
for  a  reason  which  does  not  appear,  made  it  a  con- 
dition that  the  declaration  should  not  be  published 
until  six  months  after  his  death. 

According  to  law,  the  property  of  Lesurques 
had  been  confiscated  on  his  conviction,  and  his 
widow  and  children  reduced  to  indigence.  One 
would  have  thought  that  a  government  which  had 
erred  so  egregiously  as  to  execute  a  man  for  a 
crime  of  which  he  was  not  guilty,  would  have  been 
eager  to  make  what  atonement  was  possible  to  the 
family  of  the  victim.  Nothing  of  the  sort.  The 
widow  and  her  advisers,  relying  on  the  confessions 
of  the  real  criminals,  and  the  retractions  of  the 
witnesses,  applied  for  a  revision  of  the  sentence,  so 
far  as  concerned  Lesurques,  in  order  to  obtain  a 
judicial  declaration  of  his  innocence  and  the  restora- 
tion of  his  property.  All  their  endeavors  were  vain. 


44  FAMOUS    CASES    OF 

The  right  of  revision  no  longer  existed  in  the  French 
code.  Under  the  Directory,  the  Consulate,  and  the 
Restoration,  the  applications  of  the  widow  and 
family  were  equally  unsuccessful.  All  that  they 
could  obtain  was  the  restoration,  in  the  last  two 
years  of  the  elder  Bourbons,  of  a  part  of  the  prop- 
erty sequestrated  at  the  condemnation  of  the  un- 
offending husband  and  father. 


CIRCUMSTANTIAL    EVIDENCE.  45 


VII. 

Ox  the  7th  of  February,  1851,  in  the  dead  of 
night,  the  house  of  David  Williams,  situated  at 
Truasth,  in  the  county  of  Brecknock,  was  broken 
open  by  forcing  the  shutters  and  window  of  an 
outhouse.  Williams,  an  old  man,  who  with  his 
wife  alone  occupied  the  cottage,  was  alarmed  by 

the  noise,  and  going  to  the  head  of  the  stairs,  saw 

t 

by  the  light  of  a  candle  the  person  of  a  man  whom 
he  recognized  as  one  Tom  Williams,  a  blacksmith 
living  in  the  neighborhood,  and  who  had  formerly 
done  some  work  in  the  house.  This  was  only  for 
a  moment,  as  the  light  was  struck  out,  and  the 
burglar  attacked  old  Williams  and  his  wife  in  the 
dark.  However,  they  proved  too  strong  for  him, 
and  compelled  him  to  take  to  flight.  Nothing  was 
stolen,  but  the  drawer  of  a  dresser  in  the  kitchen 
had  been  ransacked,  and  some  papers  of  no  value 
turned  out  of  it.  Tom  Williams,  the  blacksmith, 
was  tried  at  the  following  spring  assizes  at  Brecon 
for  the  burglary,  and  as  the  old  man,  who  had 
known  him  from  his  boyhood,  swore  to  him  posi- 


46  FAMOUS    CASES    OF 

tively,  he  was  convicted,  and  sentenced  to  trans- 
portation. Happily  for  Mm,  however,  a  person 
named  Morris  was  present  at  the  trial,  who,  on 
hearing  ,ihe  verdict,  at  once  exculpated  the  con- 
victed man,  and  directed  the  attention  of  the  police 
to  one  Powell,  as  the  real  criminal,  Strict  inquiry 
was  immediately  instituted,  the  result  of  which  was 
that  Powell  was  committed.  He  was  tried  before 
the  late  Mr.  Justice  TALFOTJED,  and  convicted  on 
evidence  perfectly  conclusive.  It  seems  old  Wil- 
liams had  lent  Powell  six  hundred  pounds  on 
mortgage,  taking  as  security  certain  title  deeds. 
"Williams  commenced  proceedings  to  recover  princi- 
pal and  interest,  and  Powell  committed  the  burglary 
to  possess  himself  of  the  documents ;  hence  the 
ransacking  of  the  dresser  drawer  in  which  he  be- 
lieved they  had  been  deposited.  The  blacksmith 
was  of  course  pardoned  on  the  report  of  Mr.  Justice 
TALFOURD,  and  was  discharged  in  September.  But 
the  real  criminal  was  also  discharged,  although  his 
guilt  was  clear  as  the  sun  at  noonday.  The  jury 
convicted  him  of  breaking  open,  the  house  "with 
intent  to  steal  the  title  deeds;"  the  indictment 
charged  his  intent  to  be  to  "  steal  the  goods  and 
chattels."  The  Appeal  Court  held  the  conviction 
bad. 


CIRCUMSTANTIAL  EVIDENCE.  47 


VIII. 

4» 

A  CTJEIOUS  case  of  identification  occurred  about 
twenty  years  ago.  This  was  an  instance  in  which 
the  guilt  of  a  crime  was  brought  home  to  the  per- 
petrator through  the  identifying  of  a  body  after  it 
had  been  separated  limb  from  limb,  submitted  to 
chemical  processes,  and  to  the  inordinate  heat  of  a 
furnace,  and  mingled  with  the  countless  bones  of 
anatomical  subjects  in  their  common  burying- place. 
One  Professor  Webster  was  brought  to  trial  for  the 
murder  of  Dr.  Parkman.  It  was  shown  that  the 
professor  had  urgent  pecuniary  motives  at  the  time 
when  the  crime  was  committed,  to  get  Dr.  Parkman 
out  of  the  way.  The  prisoner  had  a  residence  at 
the  Medical  College,  Boston.  He  made  an  appoint- 
ment to  meet  the  deceased  at  this  place  at  two 
o'clock  on  Friday,  the  23rd  of  November,  1849,  in 
order  to  discuss  certain  money  matters.  Dr.  Park- 
man was  seen  about  a  quarter  before  two  o'clock 
apparently  about  to  enter  the  Medical  College,  and 
after  that  was  never  again  seen  alive.  The  prisoner 
affirmed  that  Dr.  Parkman  did  not  keep  his  appoint- 


48  FAMOUS    CASES     OF 

ment,  and  diet  not  enter  the  college  at  all  on  that 
day.  For  a  whole  week  nothing  was  discovered, 
and  when  search  was  made  the  prisoner  interfered 
with  itj^nd  threw  hindrances  in  the  way. 

On  the  Friday  week  and  the  day  following  there 
were  found  in  a  furnace  connected  with  the  prison- 
er's laboratory  in  the  college,  fused  together  indis- 
criminately with  the  slag,  the  cinders,  and  the  refuse 
of  the  fuel,  a  large  number  of  bones  and  certain 
blocks  of  mineral  teeth.  A  quantity  of  gold,  which 
had  been  melted,  was  also  found.  Other  bones 
were  found  in  a  vault  under  the  college.  There 
was  also  discovered  in  a  tea-chest,  and  embedded 
in  a  quantity  of  tan,  the  entire  trunk  of  a  human 
body  and  other  bones.  The  parts  thus  collected 
together  from  different  places,  made  the  entire  body 
of  a  person  of  Dr.  Parkman's  age,  about  sixty 
years,  and  the  form  of  the  body  when  reconstructed 
had  just  the  peculiarities  shown  to  be  possessed  by 
Dr.  Parkman.  In  no  single  particular  were  the 
parts  dissimilar  to  these  of  the  deceased,  nor  in  the 
tea-chest  or  the  furnace  were  any  duplicate  parts 
t'ound  over  and  above  .what  was  necessary  to  com- 
pose one  body. 

The  remains  were  further  shown  to  have    been 
separated  by  a  person  possessed  of  anatomical  skill, 


CIRCUMSTANTIAL    EVIDENCE.  49 

though  not  for  anatomical  purposes.  Finally,  three 
witnesses,  dentists,  testified  to  the  mineral  teeth 
found  being  those  made  for  Dr.  Parkman  three 
years  before.  A  mould  of  the  doctor's  jaw  had 
been  made  at  the  time,  and  it  was  procBrced,  and 
shown  to  be  so  peculiar  that  no  accidental  con- 
formity of  the  teeth  to  the  jaw  could  possibly 
account  for  the  adaptation.  This  last  piece  of  evi- 
dence was  conclusive  against  the  prisoner,  and  he 
was  convicted.  Without  this  closing  proof  the 
evidence  would  certainly  have  been  unsatisfactory. 
The  character  of  the  prisoner,  the  possible  confusion 
throughout  the  college  of  the  remains  of  anatomical 
subjects,  the  undistinguished  features,  and  the  illu- 
siveness  of  evidence  derived  from  the  likeness  of  a 
reconstructed  body,  were  all  facts  of  a  nature  to 
substantiate  assumptions  in  favor  of  the  prisoner's 
innocence.  It  is  singular  that  the  block  of  mineral 
teeth  was  only  accidentally  preserved,  having  been 
found  so  near  the  bottom  of  the  furnace  as  to  take 
the  current  of  cold  air,  whose  impact  had  prevented 
the  thorough  combustion  that  would  otherwise  have 
taken  place. 


50  FAMOUS    CASES    OF 


IX. 


the  6th  of  August,  1660,  William  Harrison, 
who  was  steward  to  Lady  Campden,  a  person  of 
good  estate  in  Gloucestershire,  left  his  home  in  order 
to  collect  her  rents.  There  happened  to  reside  in 
the  neighborhood  a  humble  family  of  the  name  of 
Perry,  a  mother  and  two  sons,  Joan,  John,  and 
Richard,  of  whom  Joan,  the  mother,  bore  but  an 
indifferent  character,  and  John,  one  of  the  sons,  was 
known  to  be  half-witted.  It  so  happened  that  days 
and  weeks  elapsed,  and  yet  Harrison  did  not  return 
nor  were  any  tidings  heard  of  him.  Of  course,  the 
population  of  the  place  became  excited,  and  rumors 
soon  became  rife  that  he  had  been  robbed  and 
murdered.  From  the  mission  on  which  he  was 
known  to  have  left  his  home,  and  his  prolonged 
absence,  the  suspicion  was  not  unnatural.  The 
alarm  which  ensued,  and  the  numberless  inventions 
which  were  circulated,  are  supposed  to  have  be- 
wildered what  little  intellect  the  poor  idiot  had,  for 
he  actually  went  before  a  justice  of  the  peace,  and 
solemnly  deposed  to  the  murder  of  Harrison  by  his 


CIRCUMSTANTIAL    EVIDENCE.  5! 

brother  Richard,  while  his  mother  and  himself 
looked  on,  and  afterwards  joined  in  robbing  the 
deceased  of  a  hundred  and  forty  pounds.  On 
this  the  whole  three  were  sent  to  prison,  and  at  the 
following  assizes  were  doubly  indicted  for  the  rob- 
bery and  the  murder.  The  presiding  judge,  Sir 
CHAELES  THENEE,  refused  to  try  them  on  the  mur- 
(Jer  indictment,  as  the  body  had  not  been  found ;  they 
were,  however,  arraigned  on  the  charge  of  robbery, 
and  pleaded  guilty  on  some  vague  superstition  that 
their  lives  would  be  spared.  While  in  confinement 
John  persisted  in  the  charge,  adding  that  his  mother 
and  brother  had  attempted  to  poison  him  in  the 
jail  for  peaching.  When  the  next  assizes  came, 
Sir  ROBEET  HYDE,  considering  the  length  of  time 
which  had  elapsed,  and  the  non-appearance  of 
Harrison,  tried  them  for  the  murder.  The  deposi- 
tions of  John,  and  the  plea  on  the  indictment  for 
robbery,  were  given  in  evidence,  and  the  whole 
three  were  forthwith  convicted.  On  the  trial 
John  retracted  his  accusation,  declaring  that  he 
was  mad  when  he  made  it,  and  knew  not  what  he 
said.  They  all  suffered  death.  The  mother  was 
executed  first,  it  being  alleged  that  she  influ- 
enced her  sons,  and  that  they  would  never  con- 
fess while  she  was  living ;  they  died,  however, 


52  FAMOUS    CASES    OF 

loudly  protesting  their  innocence.  But  the  dis- 
appearance of  Harrison,  the  confession  of  John, 
and  the  plea  of  "guilty"  to  the  indictment  for 
robbery,  seemed  to  invest  the  case  with  every 
human  "certainty. 

After  this  poor,   ignorant,   and    deluded    family 
had  lain  in  the  grave  for  three  years,  the  people  of 

* 

Gloucester  were  startled  by  the  reappearance  in 
their  streets  of  the  murdered  Harrison !  He  ac- 
counted for  his  long  absence  thus,  in  a  letter  to  Sir 
Thomas  Overbury.  On  returning  homewards  after 
the  receipt  of  Lady  Campden's  rents,  he  was  set 
upon  by  a  gang  of  crimps,  who  forced  him.  to  the 
seashore,  where  they  hurried  him  on  shipboard  and 
carried  him  off  to  Turkey.  They  there  sold  him 
as  a  slave  to  a  physician,  with  whom  he  lived  for 
nearly  two  years,  when,  his  master  dying,  he  made 
his  escape  in  a  Hamburg  vessel  to  Lisbon,  and 
was  thence  conveyed  to  England. 


CIRCUMSTANTIAL    EVIDENCE.  53 


X. 


the  Gth  of  October,  1806,  Thomas  Wood,  a 
young  seaman,  was  tried  at  Plymouth  by  naval 
court-martial.  The  offense  charged  was  an  active 
participation  in  a  mutiny  and  murder  on  board  the 
"Hermione,"  in  1797.  At  the  time  of  his  trial,  he 
was  only  twenty-five  years  old,  and  therefore  some- 
where about  sixteen  when  the  mutiny  took  place. 
There  was  but  one  witness  against  him ;  one,  how- 
ever, whose  testimony  had  considerable  weight — the 
master  of  the  "Hermione."  This  person  most 
positively  identified  him  as  one  of  those  chiefly  im- 
plicated, and  as  having  gone,  when  on  board  his 
ship,  by  the  name  of  James  Hayes.  The  identifi- 
cation undoubtedly  was  strong ;  but  still,  consider- 
ing the  personal  changes  which  generally  take  place 
between  the  age  of  sixteen  and  twenty -five,  and  after 
an  interruption  of  nine  years  in  the  intercourse, 
scarcely  strong  enough  to  warrant  a  conviction. 
But  all  doubt  of  the  prisoner's  guilt  vanished  at 
once  before  the  voluntary  statement  which  he  put  in, 
in  the  form  of  a  written  document.  "At  the  time," 


54 


FAMOUS    CASES    OF 


said  the  written  statement,  "when  the  mutiny  took 
place,  I  was  a  boy  in  my  fourteenth  year.  Com- 
pelled by  the  torrent  of  mutiny,  I  took  the  oath  ad- 
ministered to  me  on  the  occasion.  The  examples  of 
death  which  were  before  my  eyes  drove  me  for  shelter 
among  the  mutineers,  dreading  a  similar  fate  with 
those  that  fell  if  I  sided  with  or  showed  the  smallest 
inclination  for  mercy."  To  this  frank  and  sweeping 
confession  of  his  guilt  he  added  a  declaration  of  pro- 
found remorse  for  his  crime,  and  wound  up  by 
throwing  himself  despairingly  on  the  compassion  of 
the  court.  The  court  found  him  guilty,  passed  upon 
him  the  sentence  of  death,  and  eleven  days  after- 
wards he  was  executed.  In  vain  were  all  his  suppli- 
cations for  compassion.  In  vain  did  his  brother  and 
sister  interfere,  proving,  by  a  certificate  from  the 
Navy  Office,  that  his  written  statement  must  have 
been  a  mere  hallucination,  seeing  that  the  boy  was  at 
another  place  and  in  another  ship  when  the  crime 
was  committed  on  board  the  "  Hermione." 

The  subsequent  establishment  of  this  poor  victim's 
innocence  was  most  complete  and  satisfactory.  The 
editor  of  a  weekly  journal,  called  the  "Independent 
Whig,"  took  up  the  matter  very  sternly,  and  de- 
nounced all  the  proceedings  so  indignantly  from  time 
to  time  that  the  members  of  the  court-martial  ap- 


CIRCUMSTANTIAL     EVIDENCE. 


55 


pealed  to  the  Lords  of  the  Admiralty  for  protection 
against  the  journalist.  The  Lords  of  the  Admiralty 
responded  to  the  appeal,  and  a  prosecution  was  at 
once  instituted.  It  was  fortunate  that  the  then  law 
officers  of  the  crown  were  Sir  Arthur  Pigott  and  Sir 
Samuel  Romilly.  These  discreet  men  deemed  it 
prudent  to  set  on  foot  a  strict  inquiry  into  the  facts 
before  committing  themselves  to  a  public  prosecution, 
"  not,  however,"  as  Sir  Samuel  afterwards  stated, 
"that  either  of  us  entertained  any  doubt  as  to  the 
man's  guilt."  An  inquiry  was  accordingly  in- 
stituted by  the  solicitor  of  the  Admiralty,  the  result 
of  which  was  that  Thomas  Wood,  who  had  been 
hanged  for  mutiny  and  murder,  was  proved  to  have 
been  perfectly  innocent,  and  was  actually  shown  to 
have  been  doing  his  duty  on  board  the  "Marl- 
borough"  at  Portsmouth  at  the  very  time  that  the 
crime  was  committed  by  the  mutineers  in  the  "Her- 
mione."  The  reader  naturally  asks,  How  came 
Thomas  Wood,  if  he  was  an  innocent  man,  to  con- 
fess himself  guilty?  The  answer  is  not  far  to  seek. 
Wood  was  a  simple-minded  Jack  tar  ;  he  had  no 
friends  of  any  influence ;  he  knew,  or  thought  he 
knew,  that  no  assertions  of  his  would  be  of  any  avail 
against  the  positive  evidence  of  the  master  of  the 
"Hermione;"  he  therefore  applied  to  another  man 


56  FAMOUS    CASES    OF 

to  write  a  defense  for  Mm.  Wood  read  the  produc- 
tion of  his  comrade,  and  thinking  it  likely  to  excite 
the  compassion  of  his  judges,  and  that  it  would  serve 
him  better  that  a  mere  denial  of  the  charges  brought 
against  him,  adopted  it.  That  the  means  chosen  by 
his  ignorant  comrade  for  his  defense  proved  his 
destruction,  there  can  be  no  doubt.  The  confession 
acted  as  a  bar  to  further  inquiry,  otherwise  it  is  im- 
possible to  conceive  that  the  certificate  sent  in  by  the 
brother  and  sister  previous  to  the  execution,  and 
which  showed  the  poor  man's  innocence,  should  not 
have  been  attended  to.  The  truth  was,  that  to  all 
concerned  in  the  condemnation  of  Thomas  Wood,  the 
facts  were  so  clear,  owing  to  the  confession,  that  no 
regard  whatever  was  paid  to  the  exertions  of  his 
friends,  and  the  official  certificate  was  not  merely 
slighted,  it  was  probably  never  read. 


CIRCUMSTANTIAL    EVIDENCE.  57 


XL 


the  first  floor  of  a  large  hotel  in  the  Rue 
Royale,  at  Paris,  resided  the  Count  and  Countess  de 
Montgomery.  The  Count  was  a  personage  of  rank, 
and  the  possessor  of  considerable  property,  maintain- 
ing a  numerous  retinue  of  attendants,  and  an 
almoner,  who  formed  part  of  the  establishment.  On 
the  second  and  third  floors  of  the  same  hotel  the 
Sieur  d' Anglade  resided  with  his  lady  in  a  style  of 
considerable  respectability.  The  two  families  lived 
on  the  most  amicable  terms.  It  so  happened  that  on 
one  occasion  the  count  and  countess  invited  these 
neighbors  to  accompany  them  on  a  visit  to  one  of 
their  country  seats.  The  invitation,  at  first  accepted, 
was,  for  some  unexplained  reason,  subsequently  de- 
clined when  the  count  and  countess  were  just  on  the 
eve  of  their  departure.  Many  of  their  numerous 
suite  accompanied  the  family,  and  amongst  these  was 
the  priest-almoner,  Francis  Gagnard.  From  some 
presentiment,  it  was  said,  pressing  on  the  mind  of  the 
count,  they  returned  to  Paris  the  day  before  they 
were  expected,  and  in  the  evening  they  received  a 


58  FAMOUS    CASES    Of 

visit  from  the  d'Anglades.  On  the  following  day  the 
unwelcome  discovery  was  made  that  the  count's 
strong  box  had  been  opened  by  a  false  key,  and 
completely  plundered.  It  contents  were  thirteen 
small  sacks  with  a  thousand  silver  livres  in  each.  In 
addition  to  these  were  near  twelve  thousand  livres 
in  gold,  some  double  pistoles,  a  hundred  louis  d'or, 
of  a  new  coinage  called  au  cordon,  and  a  pearl 
necklace  worth  four  thousand  livres.  The  whole 
had  vanished. 

The  lieutenant  of  police  having  been  consulted, 
at  once  pronounced  the  crime  to  have  been  per- 
petrated by  some  one  within  the  house,  and  seems 
to  have  conceived  and  manifested  a  violent  prejudice 
against  the  d'Anglade  family.  On  observing  this 
they  immediately  demanded  that  their  apartments 
should  be  examined,  and  a  strict  search  was  made, 
their  very  beds  having  been  ripped  up,  but  nothing 
whatever  was  found  to  implicate  any  one  in  the 
floors  which  they  inhabited.  In  an  attic,  however, 
which  had  been  used  as  a  kind  of  lumber-room, 
there  were  discovered,'  in  an  old  trunk  filled  with 
parchments  and  rubbish,  seventy  louis  d'or  au 
cordon,  wrapped  up  in  a  paper  on  which  a  genea- 
logical table  was  printed,  both  of  which  Mont- 
gomery claimed,  although  the  coin  had  no  peculiar 


CIRCUMSTANTIAL    EVIDENCE.  59 

mark,  and  was  ill  general  circulation.  From  this 
moment  the  suspicions  entertained  by  the  lieutenant 
were  adopted  by  the  count.  He  loudly  avouched 
the  honesty  of  all  his  servants,  and  invidiously 
adverted  to  the  theft  of  a  piece  of  plate  from  the 
Sieur  Grimandet,  a  former  tenant,  the  d'Anglades 
at  the  same  time  living  in  the  hotel.  These  sus- 
picions were  strengthened  by  the  fact  that  it  was 
known  that  d'Anglade  had  expensive  habits,  and 
that  on  their  desiring  him  to  count  the  coin  he  was 
observed  to  tremble.  His  trembling  was  the  agita- 
tion of  innocence  under  an  accusation  false  but 
plausible.  After  this  the  small  room  in  which  the' 
almoner,  a  page,  and  a  valet  de  chambre  slept,  was 
subjected  to  a  close  search,  and  here,  in  a  recess  in 
the  wall,  were  found  five  sacks  containing  a  thou- 
sand livres  each,  and  a  sixth  from  which  two  hun- 
dred had  been  extracted.  The  d'Anglades  were 
committed  to  prison,  and  it  seems,  by  the  law  of 
France,  the  prejudiced  police  lieutenant  who  com- 
mitted was  the  judge  by  whom  they  were  to  be 
tried.  D'Anglade  appealed  to  the  parliament 
against  this  foul  prejudgment,  but  he  appealed  in 
vain.  It  would  appear  that  Count  Montgomery  had 
his  misgivings,  for  he  ordered  his  almoner,  the 
priest  Gagnard,  to  say  a  solemn  mass  at  the  church 


60  FAMOUS    CASES    OF 

of  Saint  Esprit  for  the  detection  of  the  culprits  ; 
and  accordingly  the  "holy  man"  so  fervently  im- 
plored the  aid  of  the  Divine  Being  that  the  pros- 
ecutor's conscience  was  at  rest.  The  almoner  was 
examined  as  a  witness  at  the  trial,  though  what  was 
the  nature  of  his  evidence  does  not  appear ;  what- 
ever it  may  have  been,  satisfactory  proofs  were 
wanting  to  inculpate  the  accused.  The  public  eye 
was  upon  the  judge,  and,  without  plausible  proof, 
even  a  prejudiced  judge  shrank  from  pronouncing 
judgment.  But  he  had  an  alternative,  which  at 
that  time  unhappily  was  legal.  What  the  witnesses 
failed  in  proving,  the  torture  might  goad  the  ac- 
cused to  confess ;  they  therefore  put  d' Anglade  to 
the  question,  ordinary  and  extraordinary  —  they 
tormented  him  even  to  the  verge  of  death,  and 
then,  covered  over  with  wounds,  his  back  dis- 
located, his  whole  frame  shattered,  all  in  ruins 
save  a  noble  nature,  they  bore  him  back  to 
prison  beseeching  God  to  manifest  his  innocence, 
and  to  pardon  his  inhuman  persecutors  and  his  in- 
exorable judge.  Although  they  failed  to  prove  his 
guilt,  they  sentenced  him  to  restore  the  amount 
which  had  been  stolen,  and  to  serve  for  nine  years 
chained  as  a  galley-slave.  From  this  last  degrada- 
tion he  was  saved  by  death,  for  he  sank  in  his 


CIRCUMSTANTIAL    EVIDENCE.  61 

dungeon  at  Marseilles,  having  received  the  sacra- 
ments. His  poor  widow  and  orphan,  stripped  of 
everything,  even  of  the  bed  on  .which  they  lay, 
were  banished  from  Paris  and  its  precincts,  and 
cast  upon  the  world,  forsaken  and  heartbroken. 

After  the  death  of  d'Anglade  and  the  utter 
desolation  of  his  family,  their  innocence  was  clearly 
demonstrated.  Inquiry  was  instituted  in  conse- 
quence of  some  letters  which,  at  first  anonymous, 
appear  to  have  been  written  by  an  Abbe  de  Font- 
pierre,  and  the  truth  was  brought  to  light.  This 
son  of  the  church  and  expounder  of  doctrine  was  a 
member  of  a  thieves'  society,  and,  as  such,  an  as- 
sociate of  one  Belestre,  who  was  the  principal  in 
the  crime.  What  motive  impelled  Fontpierre  to 
write  the  letters — whether  it  was  some  quarrel  with 
Belestre,  or  remorse  at  the  fate  of  d'Anglade — does 
not  appear.  Belestre  could  not  have  accomplished 
the  crime  without  assistance,  and  such  was  afforded 
him  by  Francis  Gagnard,  the  inmate  of  Mont- 
gomery's house,  and  his  trusted  almoner,  the  rev-  , 
erend  divine  who  actually  celebrated  the  sacred 
ceremony  at  Saint  Esprit  for  the  discovery  of  the 
criminals.  Gagnard  and  Belestre,  both  natives  of 
the  town  of  Mons,  had  been  associated  from  infancy. 
The  former  was  the  son  of  a  jailer;  he  had 


62  FAMOUS    CASES    OF 

journeyed  to  Paris  as  an  adventurer,  and  was 
eking  out  a  mere  subsistence  by  saying  masses  at 
Saint  Esprit,  when  Montgomery  admitted  him  on 
his  establishment.  The  return  he  made  was  the 
furnishing  his  friend  Belestre  with  wax  impressions 
of  all  the  keys  he  found  there.  It  turned  out  that 
Belestre  was  a.  still  greater  villain  than  himself, 
having  been  in  the  army,  from  which  he  deserted 
after  murdering  his  sergeant,  and  was  afterwards 
prowling  about  the  dens  of  Paris,  alternately  a 
gambler,  a  beggar,  and  a  bully.  Gagnard  left 
the  service  of  Montgomery  after  the  conviction  of 
d'Anglade,  and  following  his  criminal  bent,  soon 
found  himself  in  prison,  and,  strangely  enough, 
in  the  same  cell  with  Belestre,  arrested  about  the 
same  time  on  a  different  charge.  In  the  mean 
time  the  contents  of  the  anonymous  letters  hav- 
ing much  impressed  the  authorities,  it  occurred  to 
them  to  interrogate  the  count's  late  almoner  and 
his  fellow  prisoner  as  to  the  robbery  in  the  Rue 
Royale.  They  were  first  examined  apart,  and  an 
immediate  prosecution  was  the  result.  The  Abbe 
de  Fontpierre  gave  most  important  evidence. 
Amongst  other  things  he  deposed,  that  being  in 
a  room  adjoining  one  in  which  the  accused  was 
holding  a  revel,  he  heard  Belestre  say,  "Come, 


CIRCUMSTANTIAL    EVIDENCE.  63 

my  friend,  let  us  drink  and  be  merry,  while 
d'Anglade  is  at  the  galleys."  "Poor  man,"  an- 
swered the  almoner,  "I  can't  help  being  sorry 
for  him  ;  he  is  a  good  sort  of  man,  and  was  al- 
ways obliging  to  me."  "Sorry!"  said  the  other, 
with  a  laugh,  "  sorry  for  the  man  who  has 
saved  us  from  suspicion  and  made  our  fortune!" 
A  woman  named  De  la  Comble  deposed  that 
Belestre  frequently  showed  her  a  beautiful  pearl 
necklace,  which  he  said  he  had  won  at  play. 
Upon  Belestre  there  was  a  gazette  of  Holland,  in 
which,  after  reference  to  the  d'Anglade  case,  there 
was  a  positive  statement  that  the  men  who  were 
really  guilty  of  that  robbery  had  been  since  ex- 
ecuted at  Orleans  for  another  crime.  Of  this  it 
was  supposed  he  had  himself  procured  the  inser- 
tion in  order  to  lull  inquiry.  Unfortunately,  how- 
ever, for  him  and  his  confederate,  there  was  also 
found  on  him  a  document,  in  Gagnard's  writing, 
alluding  to  the  anonymous  letters,  and  advising 
him  by  some  means  or  other  to  quiet  or  to  rid 
himself  of  the  Abbe  de  Fontpierre.  In  addition 
to  this  it  was  shown  that  Gagnard,  who  on  enter- 
ing the  count's  service  was  almost  destitute,  and 
who  could  have  saved  but  little  from  his  salary, 
had  on  leaving  it  a  profusion  of  money,  which  he 


64  FAMOUS    CASES    OF 

lavished  in  feasting  and  debauchery.  Belestre, 
also,  was  proved  at  the  same  period  to  have  pur- 
chased an  estate  at  MODS,  where  his  father  was  a 
humble  tanner.  Madame  d'Anglade  completely 
cleared  up  the  paltry  suspicions  by  which  her 
husband  had  been  sacrificed ;  but  it  is  needless  to 
detail  the  particulars  of  the  exculpation,  as  the 
criminals  made  a  full  confession  of  their  guilt. 
Indeed,  Gagnard  went  farther,  and  declared  that, 
had  he  been  closely  interrogated  during  the  first 
inquiry,  such  was  his  confusion,  he  must  have  ad- 
mitted everything.  But  the  mind  of  the  judge  was 
all  intent  on  vindicating  the  prejudices  in  which 
he  never  should  have  indulged. 


CIRCUMSTANTIAL    EVIDENCE.  65 


XII. 

THEEE  lived  in  Paris  a  woman  of  fashion,  known 
as  Lady  Mazel.  Her  house  was  roomy  and  lofty  ; 
on  the  ground  floor  was  a  large  hall  in  which  was 
a  grand  staircase ;  in  a  room  opening  into  the  hall 
slept  the  valet,  whose  name  was  Le  Bran  ;  the  rest 
of  this  floor  consisting  of  apartments  in  which  the 
lady  saw  company.  In  the  floor  up  one  pair  of 
stairs  was  the  lady's  own  chamber,  which  was  in 
front  of  the  house,  and  was  the  innermost  of  three 
rooms  from  the  grand  staircase.  The  key  of  this 
chamber  was  usually  taken  out  of  the  door  and 
laid  on  a  chair  by  the  servant  who  was  last  with 
the  lady,  and  who,  pulling  the  door  after  her,  shut 
it  with  a  spring,  so  that  it  could  not  be  opened 
from  without.  In  this  chamber,  also  were  two 
doors  —  one  communicating  with  a  back  staircase, 
the  other  with  a  wardrobe  which  also  opened  on 
the  back  stairs.  On  the  second  floor  slept  the  Abbe 
Poulard  ;  and  on  the  third  story  were  the  chambers 
allotted  to  the  servants  ;  the  fourth  story  consisted 
of  lofts  and  granaries,  whose  doors  were  always  open. 


66  FAMOUS    CASES    OF 

On  the  last  Sunday  in  November,  the  two 
daughters  of  Le  Brun,  the  valet,  who  were  fashion- 
able milliners,  waited  on  the  lady,  and  were  kindly 
received ;  but,  as  she  was  going  to  church  to  the 
afternoon  service,  she  pressed  them  to  come  again 
when  she  could  have  more  of  their  company.  Le 
Brun  attended  his  lady  to  church,  and  then  went 
to  another  himself,  after  which  he  went  to  several 
places,  and  having  supped  with  a  friend,  he  went 
home.  Lady  Mazel  supped  with  the  Abbe  Poulard, 
as  usual,  and  about  eleven  o'clock  retired  to  her 
chamber,  attended  by  her  maids.  Before  they  left 
her  Le  Brun  came  to  the  door  to  receive  his  orders 
for  the  next  day ;  then  one  of  the  maids  laid  the 
key  of  the  room  door  on  the  chair  next  it — they 
went  out,  and  Le  Brun  following  shut  the  door  after 
him. 

In  the  morning  he  went  to  market,  made  his 
purchases,  and  returning  home  transacted  his 
business  as  usual.  At  eight  o'clock  he  expressed 
surprise  that  his  lady  did  not  get  up,  as  she 
generally  rose  early.  He  went  to  his  wife's  lodg- 
ing, which  was  close  by,  told  her  he  was  uneasy 
that  his  lady's  bell  had  not  rung,  and  gave  her 
some  money  which  he  desired  her  to  lock  up;  he 
then  went  home  again,  and  found  the  servants  dis- 


CIRCUMSTANTIAL  EVIDENCE.  67 

mayed  at  hearing  nothing  of  their  lady.  When 
one  of  them  observed  that  he  feared  she  had  been 
seized  with  an  illness,  Le  Brim  said,  "It  must  be 
something  worse ;  my  mind  misgives  me,  for  I 
found  the  street  door  open  last  night  after  all  the 
family  were  in  bed."  They  then  sent  for  the  lady's 
son,  M.  de  Savoniere,  who  hinted  to  Le  Brun  his 
fear  of  an  apoplexy.  Le  Brun  replied  that  he 
feared  something  worse,  and  again  mentioned  his 
having  found  the  street  door  open.  A  smith  was 
eent  for,  the  door  was  broken  open,  and  Le  Brun, 
running  to  the  bed,  after  calling  several  times,  threw 
back  the  curtains  and  cried  out,  "Oh,  my  lady  is 
murdered!"  He  then  ran  to  the  wardrobe  and 
took  up  the  strong  box,  and  finding  it  heavy,  said, 
"She  has  not  been  robbed,  how  is  this?"  The 
body,  on  examination,  showed  no  less  than  fifty 
wounds ;  they  found  in  the  bed  a  scrap  of  a  cravat 
of  coarse  lace,  and  a  napkin  made  into  a  nightcap, 
which  was  blood-stained,  and  had  the  family  mark 
on  it.  From  the  wounds  on  the  lady's  hand,  it  ap- 
peared she  had  struggled  bravely  with  the  assassin  ; 
she  could  not  ring  for  aid,  the  bell-strings  being 
twisted  round  the  tester,  and  thus  out  of  her  reach. 
A  knife  was  found  in  the  ashes  almost  consumed 
by  the  fire ;  the  key  of  the  chamber  had  been 


68  FAMOUS    CASES     OF 

taken  from  the  chair ;  but  there  were  no  marks  of 
violence  on  any  of  the  doors,  nor  were  there  any 
indications  of  a  robbery,  as  a  large  sum  of  money 
and  all  the  lady's  jewels  were  found  in  the  strong 
box  and  other  places. 

On  being  examined,  Le  Brun  stated  that  after  he 
left  the  maids  on  the  stairs,  he  went  down  into  the 
kitchen,  and,  sitting  down  by  the  fire,  he  fell  asleep ; 
that  he  slept,  as  he  thought,  about  an  hour,  and 
going  to  lock  the  street  door,  he  found  it  open;  that 
he  locked  it,  and  took  the  key  with  him  to  his 
chamber.  When  searched,  there  was  found  in  his 
pocket  a  key,  the  wards  of  which  had  been  enlarged 
by  filing,  and  which  was  found  to  open  the. street 
door,  the  antechamber,  and  both  the  doors  in  Lady 
Hazel's  chamber.  On  trying  the  bloody  nightcap  on 
Le  Bran's  head,  it  was  found  to  fit  him  exactly, 
whereupon  he  was  committed  to  prison. 

At  the  trial,  it  appeared  that  the  lady  had  been 
murdered  by  some  persons  who  had  been  admitted 
by  Le  Brun  for  the  purpose.  He  could  not  himself 
have  done  it,  because  there  was  no  blood  upon  his 
clothes,  nor  any  scratch  on  his  person,  as  there  must 
have  been  on  the  murderer  from  the  victim's  strug- 
gling. But  that  Le  Brun  had  let  him  in  seemed 
clear.  None  of  the  locks  were  forced,  and  his 


CIRCUMSTANTIAL    EVIDENCE.  69 

story  of  finding  the  street  door  open,  the  circum- 
stances of  the  key  and  the  nightcap,  also  of  a  ladder 
of  ropes  being  found  in  the  house,  which  might  be 
supposed  to  be  laid  there  by  Le  Brun  to  take  off 
the  attention  from  himself,  were  all  interpreted  as 
proofs  of  his  guilt.  It  was  inferred  that  he  had  an 
accomplice,  because  part  of  the  cravat  found  in  the 
bed  was  discovered  not  to  be  his,  but  the  maids 
deposed  that  they  had  washed  such  a  cravat  for  one 
Berry,  who  had  been  a  footman  to  the  lady,  and 
who  was  turned  away  about  four  months  before 
for  robbing  her.  There  was  also  found  in  the  loft 
at  the  top  of  the  house,  under  some  straw,  a  shirt 
very  bloody,  but  which  evidently  had  never  belonged 
to  Le  Brun.  The  accused  had  nothing  to  oppose  to 
these  strong  circumstances  but  his  long  and  faithful 
service,  and  his  uniformly  good  character.  It  was 
resolved  to  put  him  to  the  torture  in  order  to  dis- 
cover his  accomplices.  This  was  done  with  such 
severity  that  he  died  in  a  few  days  of  the  injuries 
he  received,  declaring  his  innocence  with  his  dying 
breath. 

Poor  Le  Brun  had  scarcely  been  dead  a  month, 
when  there  came  information  from  the  provost  of 
Sens,  that  a  dealer  in  horses  had  lately  set  up  there 
by  the  name  of  John  Garlet,  but  whose  real  name 


70  FAMOUS    CASES    OF 

was  found  to  be  Berry,  and  that  he  had  been  a 
footman  in  Paris.  In  consequence  of  this,  he  was 
taken  up,  and  the  suspicion  of  his  guilt  was  in- 
creased by  his  attempting  to  bribe  the  officers.  On 
searching  him,  a  gold  watch  was  found,  which 
proved  to  be  Lady  Hazel's.  A  person  in  Paris 
swore  to  seeing  him  go  out  of  Lady  Mazel's,  the 
night  she  was  murdered  ;  and  a  barber  swore  to 
shaving  him  next  morning,  when,  on  his  remarking 
to  his  customer  that  his  hands  were  very  much 
scratched,  Berry  said  he  had  been  killing  a  cat.  His 
guilt  being  evident,  he  was  condemned  to  the  torture, 
and  afterwards  to  be  broken  alive  on  the  wheel. 
Under  the  torture,  he  made,  as  many  others  have 
done,  a  false  confession,  declaring  that  at  the  insti- 
gation of  Madame  de  Savoniere,  Lady  Mazel's 
daughter,  he  and  Le  Brun  had  undertaken  to  rob 
and  murder  the  lady,  and  that  Le  Brun  murdered 
her  while  he  guarded  the  door  to  prevent  surprise. 
But  when  brought  to  the  place  of  execution,  he 
recanted  what  he  had  said  against  Le  Brun  and 
Madame  de  Savoniere,  and  confessed  "that  he 
came  to  Paris  on  the  Wednesday  before  the  murder 
was  committed.  On  the  Friday  evening  he  went 
into  the  house,  and  unperceived,  got  into  one  of  the 
lofts,  where  he  lay  till  Sunday  morning,  subsisting 


CIRCUMSTANTIAL    EVIDENCE.  71 

on  apples  and  bread,  which  he  had  in  his  pockets ; 
that  about  eleven  o'clock  on  Sunday  morning,  when 
he  knew  the  lady  had  gone  to  church,  he  stole 
down  to  her  chamber,  and  the  door  being  open,  he 
tried  to  get  under  the  bed  ;  but  it  being  too  low,  he 
returned  to  the  loft,  pulled  off  his  coat  and  waist- 
coat, and  returned  to  the  chamber  a  second  time, 
in  his  shirt.  He  then  got  under  the  bed,  where  he 
continued  till  the  afternoon,  when  Lady  Mazel  went 
to  church  ;  that  knowing  she  would  not  come  back 
soon,  he  left  his  hiding-place,  and  being  incom- 
moded with  his  hat,  he  threw  it  under  the  bed,  and 
made  a  cap  of  a  napkin  which  lay  on  a  chair,  secured 
the  bell-strings,  and  then  sat  down  by  the  fire,  where 
he  continued  till  he  heard  her  coach  drive  into  the 
courtyard,  when  he  again  got  under  the  bed  and 
remained  there  ;  that  Lady  Mazel  having  been  in 
bed  about  an  hour,  he  got  from  under  it,  and 
demanded  her  money ;  she  began  to  cry  out,  and 
attempted  to  ring,  upon  which  he  stabbed  her,  and 
she  resisting  with  all  her  strength,  he  repeated  the 
stabs  till  she  was  dead ;  that  he  then  took  the  key 
of  the  wardrobe  cupboard  from  the  bed's  head, 
opened  the  cupboard,  found  the  key  of  the  strong 
box,  opened  it  and  took  out  all  the  gold  he  could 
find,  to  the  amount  of  about  six  hundred  livres ; 


72  FAMOUS    CASES    OF 

that  he  then,  locked  the  cupboard,  and  replaced  the 
key  at  the  bed's  head,  threw  his  knife  into  the  fire, 
took  his  hat  from  under  the  bed,  left  the  napkin  in 
it,  took  the  key  of  the  chamber  from  the  chair,  and 
let  himself  out;  went  to  the  loft,  where  he  pulled 
off  his  shirt  and  cravat,  and  leaving  them  there,  put 
on  his  «oat  and  waistcoat,  and  stole  softly  down 
stairs  ;  and  finding  the  street  door  only  on  the  single 
lock,  he  opened  it,  went  out,  and  left  it  open ;  that 
he  had  brought  a  rope  ladder  to  let  himself  down 
from  a  widow  if  he  had  found  the  street  door 
double  locked,  but  finding  it  otherwise,  he  left  the 
rope  ladder  at  the  bottom  of  the  stairs,  where  it  was 
found." 

Thus  was  this  foul  mystery  cleared  up — and 
thus  were  all  the  circumstances  which  appeared 
against  Le  Brun  accounted  for,  consistently  with 
his  innocence.  Le  Brun  perished,  as  d'Anglade 
had  perished,  through  the  headlong  precipitancy  of 
the  criminal  court  and  the  judge. 


CIRCUMSTANTIAL    EVIDENCE.  73 


XIII. 

A  MOST  melancholy  case  of  circumstantial  evi- 
dence happened  in  London,  in  the  year  1315,  the 
particulars  of  which  must  yet  dwell  in  the  memo- 
ries of  many  still  living.  Eliza  Fenning  was  a 
servant  girl,  very  young,  and  said  to  be  very  beauti- 
ful, living  in  Chancery  Lane.  She  was  but  twenty- 
one  years  of  age,  the  dutiful  and  only  child  of 
respectable  parents,  then  alive.  She  was  tried  at 
the  Old  Bailey,  in  the  month  of  April,  1815,  before 
the  recorder  of  London,  for  the  crime  of  admin- 
istering poison  to  her  master  and  mistress,  and  her 
master's  father — a  capital  felony  under  Lord  EL- 
LENBOKOTJGH'S  Act.  The  only  evidence  to  affect 
the  prisoner  was  entirely  circumstantial.  The 
poison  was  contained  in  dumplings  made  by  her, 
but  it  was  proved  by  the  surgeon,  who  gave  evi- 
dence at  the  trial,  that  she  had  eaten  of  them  .her- 
self, and  had  been  quite  as  ill  as  any  of  the  persons 
whom  she  was  supposed  to  have  intended  to  poison. 
Further,  her  eating  of  them  could  not  be  ascribed 
to  art,  or  to  any  attempt  to  conceal  her  crime,  for 


74  FAMOUS    CASES    OF 

she  had  made  no  effort  whatever  to  remove  the 
strongest  evidence  of  guilt,  if  guilt  there  was.  She 
had  left  the  dish  unwashed  ;  and  the  proof  that 
arsenic  was  mixed  it  it,  was  furnished  by  its  being 
found  in  the  kitchen  on  the  following  day,  exactly 
in  the  state  in  which  it  had  been  brought  from  the 
table. 

It  is  hardly  conceivable  that,  such  being  the  cir- 
cumstances, a  conviction  could  have  been  possible. 
"But,"  says  Sir  SAMUEL  ROMILLY,  from  whose 
manuscript  this  account  is  condensed,  "the  recorder 
appeared  to  have  conceived  a  strong  prejudice 
against  the  prisoner;  in  summing  up  the  evidence, 
he  made  some  very  unjust  and  unfounded  observa- 
tions to  her  disadvantage,  and  she  was  convicted." 
Petitions  signed,  not  by  hundreds,  but  by  thousands, 
besought  the  throne  for  mercy.  The  master  of  the 
girl  was  requested  to  add  his  name  to  the  petitioners 
on  her  behalf,  but  the  recorder  dissuaded  him,  and 
at  his  instance  he  refused.  All  intercession  was 
fruitless,  and  Eliza  Fenning  was  ordered  for  execu- 
tion. She  mildly,  but  earnestly,  asserted  her  inno- 
cence to  the  last,  and  prayed  to  God  some  day  to 
make  it  manifest.  When  the  religious  ceremonies 
were  over,  the  sad  procession  moved  towards  the 
scaffold.  As  the  last  door  was  opening  which  still 


CIRCUMSTANTIAL    EVIDENCE.  75 

Concealed  her  from  the  public  gaze,  Mr.  Cotton,  the 
ordinary,  made  a  final  effort:  "Eliza,  have  you 
nothing  more  to  say  to  me?"  It  was  an  awful 
moment,  but  her  last  words  in  this  world  were, 
"Before  the  just  and  Almighty  God,  and  by  the 
faith  of  the  Holy  Sacrament  I  have  received,  I  am 
innocent  of  the  offense  of  which  I  am  charged." 
The  door  then  opened,  and  she  stood  robed  in  white, 
before  the  people.  Two  old  offenders  were  executed 
with  her,  "and,"  says  a  bystander,  "as  all  three 
stood  under  the  beam,  beneath  the  sun,  she  looked 
serene  as  angel."  The  stormy  multitude  was  hushed 
at  once,  and  while  all  eyes  wept,  and  every  tongue 
prayed  for  her,  she  passed  into  eternity. 

When  the  curtain  had  fallen  upon  this  tragedy, 
the  fury  of  the  people  knew  no  bounds,  and  the 
house  of  the  prosecutor  was  protected  only  by  the 
presence  of  a  considerable*  force.  The  temper  of  the 
times  was  such  that  nothing  could  prevent  a  popular 
demonstration  at  the  funeral,  and  a  mournful  and 
striking  one  it  must  have  been.  The  broken-hearted 
parents  led  the  way,  followed  by  six  young  females 
clad  in  white,  and  then  by  eight  chief  mourners.  At 
least  ten  thousand  persons  accompanied  the  hearse, 
and  thus,  every  window  filled,  and  every  housetop 
crowded,  they  reached  the  cemetery  of  St.  George 


7  6  FAMOUS    CASES    OF 

the  Martyr,  where  the  remains  of  the  innocent  girl 
was  interred. 

Sir  SAMUEL  ROMILLY  farther  states,  that  after 
Eliza  Fenning's  conviction,  and  while  the  error  was 
reparable,  "an  offer  was  made  to  prove  that  there 
was  in  the  house  of  Eliza' s  master,  when  the  poison- 
ing took  place,  a  person  who  had  labored,  a  short 
time  before,  under  mental  derangement,  and  who, 
in  that  state,  had  declared  his  fears  that  he  should 
destroy  himself  and  his  family."  This  statement 
was  made  to  the  recorder  himself,  and  evidence  of 
its  truth  was  offered,  but  that  functionary  affirmed 
that  the  production  of  any  evidence  of  the  kind 
would  be  wholly  useless.  That  the  crime  was  com- 
mitted by  a  maniac,  there  can  be  but  small  doubt. 
The  testimony  of  Mr.  Gibson,  who  was  then  con- 
nected with  the  firm  of  Corbyn  &  Co.,  Holborn,  is 
all  but  conclusive  on  the  point.  This  gentleman 
stated  that  "about  September  or  October,  in  the 

preceding  year,  a  Mr. (the  name,  for  obvious 

reasons,  was  not  made  public),  called  on  me  in 
Holborn.  He  seemed  in  such  a  wild  and  deranged 
state,  that  I  took  him  into  a  back  room,  where  he 
used  the  most  violent  and  incoherent  expressions — 
'My  dear  Gibson,  do,  for  Heaven's  sake,  get  me 
secured  or  confined,  for  if  I  am  left  at  liberty  I 


CIRCUMSTANTIAL    EVIDENCE.  77 

shall  do  some  mischief;  I  shall  destroy  myself 
and  my  wife.  I  must  and  shall  do  it  unless  all 
means  of  destruction  are  removed  out  of  my  way ; 
therefore  do,  my  good  friend,  have  me  put  under 
some  restraint ;  somefJiing  from  above  tells  me  I 
must  do  it,  and,  unless  I  am  prevented,  I  shall  cer- 
tainly do  it."  Mr.  Gibson  felt  it  his  duty  to  com- 
municate this  to  the  poor  maniac's  family,  but  they 
were  heedless  of  the  warning,  and  he  was  left  at 
liberty. 


FAMOUS    CASES     OF 


XIV. 

ABOUT  the  middle  of  the  last  century,  Richard 
Coleman  was  indicted  at  the  Kingston  assizes,  in 
Surrey,  for  the  murder  of  Sarah  Green.  Coleman 
was  a  man  of  some  education,  was  married  and  had 
several  children,  and  was  clerk  to  a  brewer  when 
the  affair  happened  which  cost  him  his  life.  One 
Sarah  Green,  a  woman  of  a  humble  class,  was 
attacked  by  three  men,  who  maltreated  her  so 
cruelly  that  she  afterwards  died.  These  men  had 
the  appearance  of  brewers'  servants,!  and  while 
she  was  under  treatment  in  the  hospital,  she  de- 
clared that  a  clerk  in  Berry's  brewhouse  was  one 
of  them,  though  it  was  not  clear  to  whom  she 
alluded.  Two  days  after  the  transaction,  Coleman 
went  into  an  alehouse  for  refreshment,  where  he 
met  with  one  Daniel  Trotman,  whom  he  knew. 
Having  called  for  some  spirits  and  water,  Coleman 
was  stirring  it  with  a  spoon,  when  a  stranger  who 
was  present,  asked  him  what  he  had  done  with  the 
pig — alluding  to  a  pig  which  had  been  lately  stolen  in 
the  neighborhood.  The  retort  led  to  a  violent 


CIRCUMSTANTIAL  EVIDENCE.  79 

quarrel,  in  the  course  of  which,  the  stranger  in- 
sinuated that  Coleman  had  been  concerned  in  the 
murder  of  Sarah  Green.  Coleman  answered  the  in- 
sinuation only  by  further  aggravating  his  opponent. 
There  was  no  breach  of  the  peace,  and  the  parties 
separated  at  length,  with  mutual  ill-temper  and 
personal  abuse. 

A  day  or  two  after  this  quarrel,  Daniel  Trotman 
and  another  man  went  before  a  magistrate  in  the 
Borough,  and  charged  Coleman  with  the  crime. 
The  magistrate,  not  supposing  that  Coleman  was 
guilty,  sent  a  man  with  him  to  the  hospital  where 
the  wounded  woman  lay,  and  a  person  pointing 
out  Coleman,  asked  her  if  he  was  one  of  the  per- 
sons who  assailed  her.  She  said  she  believed  he 
was,  but  as  she  declined  to  swear  positively  to  his 
having  any  concern  in  the  affair,  the  magistrate, 
Justice  CLAEKE,  admitted  him  to  bail.  A  short 
time  afterwards  Coleman  was  again  taken  before 
the  magistrate,  when  nothing  positive  being  sworn 
against  him,  the  justice  would  have  absolutely 
discharged  him;  but  Mr.  Wynne,  the  master  of  the 
injured  girl,  requesting  that  he  might  be  once 
more  taken  to  see  her,  a  time  was  fixed  for  that 
purpose,  and  the  justice  took  Coleman' s  word  for 
his  appearance.  He  came  punctually  to  his  time, 


8o  FAMOUS    CASES    OF 

bringing  with,  him  the  landlord  of  an  alehouse  where 
Sarah  Green  had  been  drinking  on  the  night  of 
the  crime  with  the  three  men  who  were  really  guilty  ; 
and  this  publican,  and  other  people,  declared  on 
oath  that  Coleman  was  not  one  of  the  party.  On 
the  following  day,  Justice  CLAEKE  went  to  the 
hospital  to  take  the  examination  of  the  woman  on 
oath.  Having  asked  her  if  Coleman  was  one  of  the 
men  who  had  attacked  her,  she  said  she  could  not 
tell,  as  it  was  dark  at  the  time,  but  Coleman  being 
called  in,  an  oath  was  administered  to  her,  when 
she  swore  that  he  was  one  of  the  three  assailants. 
Spite  of  her  oath,  the  justice,  who  thought  the  poor 
girl  not  in  her  right  senses,  and  was  convinced  in  his 
own  mind  of  the  innocence  of  Coleman,  permitted 
him  to  depart,  on  his  promise  of  bringing  bail  the 
following  day,  to  answer  the  complaint  at  the  next 
assizes  for  Surrey  ;  and  he  brought  his  bail  and  gave 
security  accordingly. 

Sarah  Green  dying  in  the  hospital,  the  coroner's 
jury  sat  to  inquire  the  cause  of  her  death  ;  and  hav- 
ing found  a  verdict  of  willful  murder  against  Richard 
Coleman  and  two  persons  then  unknown,  a  warrant 
was  issued  to  take  Coleman  into  custody.  Though 
conscious  of  his  innocence,  yet  such  was  the  agita- 
tion of  his  mind  at  the  idea  of  being  sent  to  prison 


CIRCUMSTANTIAL    EVIDENCE.  81 

on  such  a  charge,  that  Coleman  absconded,  and 
secreted  himself  at  Pinner,  near  Harrow-on-the-Hill. 
The  king  being  then  at  Hanover,  a  proclamation  was 
issued  by  the  lords  of  the  regency,  offering  a  re- 
ward of  fifty  pounds  for  the  apprehension  of  the 
supposed  offender  ;  and  to  this  the  parish  of  Saint 
Saviour,  Southwark,  added  a  further  sum  of  twenty 
pounds.  Coleman  read  in  the  "Gazette"  an  ad- 
vertisement for  his  apprehension,  but  was  still  so 
thoughtless  as  to  conceal  himself,  though  perhaps 
an  immediate  and  voluntary  surrender  would  have 
been  his  wisest  course.  However,  to  assert  his  in- 
nocence, he  caused  the  following  advertisement  to 
be  printed  in  the  newspapers : 

"I,  Richard  Coleman,  seeing  myself  advertised 
in  the  'Gazette'  as  absconding  on  account  of  the 
murder  of  Sarah  Green,  knowing  myself  not  any 
way  culpable,  do  assert  that  I  have  not  absconded 
from  justice,  but  will  willingly  and  readily  appear 
at  the  next  assizes,  knowing  that  my  innocence  will 
acquit  me." 

The  authorities,  not  choosing  to  wait  for  his 
promised  appearance,  however,  made  strict  search 
after  him,  and  he  was  apprehended  at  Pinner  on 
the  22nd  of  November,  and  lodged  in  Southwark 
jail  till  the  time  of  the  assizes  at  Kingston,  Surrey, 


82  FAMOUS    CASES    OF 

At  the  trial  several  persons  swore  positively  that 
Coleman  was  at  another  place  at  the  time  the  crime 
was  committed  ;  but  their  evidence  was  not  believed, 
and  he  was  convicted  principally  upon  the  evidence 
of  Daniel  Trotman,  and  the  declaration  of  the  dying 
woman.  After  conviction,  Coleman  behaved  like  a 
man  possessed  of  conscious  innocence,  and  betrayed 
no  fear  in  dying  for  a  crime  which  he  had  not  com 
mitted.  At  the  place  of  execution,  he  delivered  to 
the  chaplain  who  had  attended  him  a  paper,  in 
which  he  declared,  in  the  most  solemn  and  explicit 
manner,  that  he  was  altogether  innocent  of  the 
crime  alleged  against  him.  He  was  executed  at 
Kennington  Common,  on  the  12th  of  April,  1749—- 
and  died  with  perfect  resignation,  lamenting  only 
the  distress  in  which  he  should  leave  a  wife  and  two 
children. 

About  two  years  after  Coleman' s  death,  it  was 
discovered  that  three  working  brewers  named 
James  Welch,  Thomas  Jones,  and  John  Nichols, 
were  the  persons  who  had  actually  occasioned  the 
death  of  Sarah  Green.  These  wretches  had  been 
intimately  acquainted  from  'their  childhood,  and 
had  kept  the  murder  a  secret,  till  it  was  discovered 
in  the  following  manner.  Welch,  and  a  young  fellow 
named  James  Bush,  were  walking  together  in  the 


CIRCUMSTANTIAL    EVIDENCE.  83 

neighborhood  of  Newington,  when  their  conversa- 
tion happened  to  turn  on  the  subject  of  persons 
who  had  been  executed  for  offenses  of  which  they 
had  not  been  guilty — "Among  whom,"  said  Welch, 
as  if  by  a  sudden  impulse,  "was  Richard  Coleman. 
Nichols,  Jones,  and  I,  were  the  persons  who  com- 
mitted the  murder  for  which  he  was  hanged." 
Welch  then  went  on  to  relate  the  circumstances  of 
the  crime — his  companion  listening  to  the  disclo- 
sure with  feelings  that  may  be  imagined.  Bush 
scarcely  credited  the  story  thus  abruptly  communi- 
cated, and  for  a  time  said  nothing  about  it  to  any 
one ;  at  length,  however,  he  told  his  father  what 
he  had  heard,  and  his  father  meeting  shortly  after- 
wards with  Thomas  Jones,  and  willing  to  test  the 
truth  of  so  strange  a  tale,  abruptly  charged  him 
with  being  one  of  the  murderers  of  Sarah  Green. 
Jones  trembled  and  turned  pale  at  the  charge,  but 
soon  assuming  a  degree  of  courage,  said:  "What 
does  it  signify  ?  The  man  is  hanged,  and  the  woman 
is  dead,  and  nobody  can  hurt  us."  In  consequence 
of  this  acknowledgment,  Nichols,  Jones,  and  Welch 
were  apprehended,  when  all  of  them  steadily  denied 
their  guilt.  Nichols,  however,  subsequently  turned 
against  his  companions,  and  was  admitted  as  evi- 
dence for  the  crown. 


84  FAMOUS    CASES    OF 

The  prisoners  being  brought  to  trial  at  the  next 
Surrey  assizes,  were  both  of  them  convicted  on  the 
testimony  of  Nichols,  and  sentence  of  death  was 
passed  upon  them.  After  conviction,  they  be- 
haved with  the  utmost  contrition,  and  made  a 
full  confession  of  their  crime.  They  likewise 
signed  a  declaration  which  they  begged  might  be 
published,  containing  the  fullest  assertions  of  Cole- 
man's  innocence. 


CIRCUMSTANTIAL    EVIDENCE.  85 


XV. 

ANOTHEB  case,  in  which  an  innocent  man  was 
convicted  on  the  evidence  of  a  dying  person,  was 
that  of  William  Shaw,  of  Leith.  Shaw  was  an 
artisan,  and  lived  in  that  town  respectably  for  his 
station  in  life,  his  family  consisting  but  of  an  only 
daughter,  who  resided  with  him ;  she  had  formed 
an  unfortunate  attachment  to  a  young  man  whom 
the  father  knew  to  be  of  bad  character,  and  there- 
fore sternly  discountenanced  his  addresses.  This 
gave  rise  to  continual  dissension,  until,  at  length,  it 
one  day  rose  to  such  a  height,  that  James  Morrison, 
the  tenant  of  an  adjoining  room,  could  not  avoid 
overhearing  the  conversation.  The  voices  of  father 
and  daughter  were  recognized,  and  the  words, 
"cruelty,"  "barbarity,"  and  "death,"  were  over 
and  over  again  angrily  enunciated.  The  father  at 
last  left  the  room  abruptly,  locking  the  door  behind 
him,  and  leaving  the  daughter  a  prisoner.  After 
some  little  time,  deep  noises  were  heard  from  within, 
which  gradually  becoming  fainter,  the  alarmed, 
neighbors  procured  the  assistance  of  a  bailiff,  and 


86.  FAMOUS    CASES    OF 

burst  open  the  door.  Ghastly,  indeed,  was  the 
spectacle  which  presented  itself.  There  lay  the 
young  woman  on  the  floor,  weltering  in  her  blood — 
a  knife,  the  instrument  of  her  death,  beside  her. 
To  the  question  whether  her  father  had  been  the 
cause  of  her  sad  condition,  she  was  just  able  to 
make  a  faint  affirmative  gesture,  and  expired.  At 
this  moment  the  father  reappeared.  His  horror 
may  be  imagined ;  every  eye  was  fixed  on  him, 
and  some  specks  of  blood  upon  his  shirt-sleeves 
seemed  to  confirm  strongly  the  dreadful  accusation 
which  his  daughter's  dying  gesture  had  too  clearly 
intimated.  Yainly  attempting  to  account  for  the 
stained  sleeve  by  the  rupture  of  some  swathe  with 
which  he  had  bound  his  wrist,  he  was  hurried 
before  a  magistrate,  and,  upon  the  depositions  of 
all  the  parties,  committed  to  prison  upon  suspicion. 
He  was  shortly  after  brought  to  trial,  when,  in  his 
defense,  he  acknowledged  his  having  confined  his 
daughter  to  prevent  her  intercourse  with  Lawson, 
the  young  man  to  whom  he  objected  ;  and  that  he 
had  quarreled  with  her  on  the  subject  the  evening 
she  was  found  murdered,  as  the  witness  Morrison 
had  deposed ;  but  he  averred  that  he  left  his 
daughter  unharmed  and  untouched,  and  that  .the 
blood  found  upon  his  shirt  was  there  in  conse- 


CIRCUMSTANTIAL    EVIDENCE.  87 

quence  of  his  having  bled  himself  some  days 
before,  and  the  bandage  becoming  untied.  These 
assertions  did  not  weigh  a  feather  with  the  jury 
when  opposed  to  the  strong  circumstantial  evidence 
of  the  daughter's  expressions  of  "barbarity,  cruelty, 
death,"  together  with  that  apparently  affirmative 
motion  of  her  head,  and  of  the  blood  so,  as  it 
seemed,  providentially  discovered  on  the  father's 
shirt.  On  these  severally  concurring  circumstances 
was  William  Shaw  found  guilty  and  executed. 

After  this  unfortunate  man  had  swung  for  weeks 
upon  his  gibbet — for  he  was  gibbeted  in  chains, 
exposed  to  the  four  winds  of  heaven  and  the  gaze 
of  every  passer-by — it  was  shown,  beyond  the 
possibility  of  donbt,  that  he  was  not  merely  guilt- 
less, but  that  he  had  fallen  a  sacrifice  to  his  regard 
for  her  whom  he  was  accused  of  having  murdered. 
The  incoming  tenant  who  succeeded  Shaw,  while 
rummaging  in  the  chamber  where  Catherine  Shaw 
died,  discovered  in  a  cavity  on  one  side  of  the 
chimney,  where  it  appeared  to  have  fallen,  a  paper 
written  by  the  wayward  girl,  announcing  her  in- 
tention of  committing  suicide,  and  ending  with  the 
words,  "My  inhuman  father  is  the  cause  of  my 
death ; "  thus  explaining  her  expiring  gesture. 
This  document  being  shown,  the  handwriting  was 


88  FAMOUS    CASES    OF 

recognized  and  avowed  to  be  Catherine's  by  many 
of  her  relatives  and  friends.  It  became  the  pnblic 
talk,  and  the  magistracy  of  Edinburgh,  on  a 
scrutiny,  being  convinced  of  its  authenticity, 
ordered  the  body  of  William  Shaw  to  be  given 
to  his  relatives  for  interment.  Willing  to  make 
some  reparation  to  his  memory,  and  to  show  some 
sympathy  with  the  feelings  of  his  relatives,  they 
caused  a  pair  of  colors  to  be  waved  over  his  grave. 
It  was  all  the  compensation  they  could  award. 


CIRCUMSTANTIAL    EVIDENCE.  89 


XVI. 

JAQUES  DU  MOULIIST,  a  French  refugee,  having 
brought  over  his  family  and  a  small  sum  of  money, 
employed  it  in  purchasing  lots  of  goods  that  had  been 
condemned  at  the  custom-house,  which  he  again  dis- 
posed of  by  retail.  As  these  goods  were  such  as, 
having  a  high  duty,  were  frequently  smuggled, 
those  who  dealt  in  this  way  were  generally  suspected 
of  increasing  their  stock  by  illicit  means,  and 
smuggling,  or  purchasing  smuggled  goods,  under 
color  of  dealing  only  in  goods  that  had  been  legally 
seized  by  the  king's  officers,  and  taken  from  smug- 
glers. This  trade,  however,  did  not,  in  the  general 
estimation,  impeach  his  honesty,  though  it  gave  no 
sanction  to  his  character  ;  but  he  was  often  detected 
in  uttering  false  gold.  He  came  frequently  to  per- 
sons of  whom  he  had  received  money,  with  several 
of  these  pieces  of  counterfeit  coin,  and  pretended 
that  they  were  among  the  pieces  which  had  been 
paid  him ;  this  was  generally  denied  with  great 
eagerness,  but,  if  particular  circumstances  did  not 
confirm  the  contrary,  he  was  always  peremptory 


9o  FAMOUS    CASES    OF 

and  obstinate  in  Ms  charge.  This  soon  brought  him 
into  disrepute,  and  he  gradually  lost  not  only  his 
business,  but  his  credit.  It  happened  that,  having 
sold  a  parcel  of  goods,  which  amounted  to  seventy- 
eight  pounds,  to  one  Harris,  a  person  with  whom 
he  had  before  had  no  dealings,  he  received  the 
money  in  guineas  and  Portugal  gold,  several  pieces 
of  which  he  scrupled  ;  but  the  man  having  assured 
him  that  he  himself  had  carefully  examined  and 
weighed  those  very  pieces,  and  found  them  good, 
Du  Moulin  took  them,  and  gave  his  receipt. 

In  a  few  days  he  returned  with  six  pieces,  which 
he  averred  were  of  base  metal,  and  part  of  the 
sum  which  he  had  a  few  days  before  received  of 
him  for  the  lot  of  goods.  Harris  examined  the 
pieces,  and  told  Du  Moulin  that  he  was  sure  there 
were  none  of  them  among  those  which  he  had 
paid  him,  and  refused  to  exchange  them  for  others. 
Du  Moulin  as  peremptorily  insisted  on  the  contrary, 
alleging  that  he  had  put  the  money  in  a  drawer  by 
itself,  and  locked  it  up  till  he  offered  it  in  payment 
of  a  bill  of  exchange,  and  then  the  pieces  were 
found  to  be  bad,  insisting  that  they  were  the  same  to 
which  he  had  objected.  The  man  now  became 
angry,  and  charged  Du  Moulin  with  intending  a 
fraud.  Du  Moulin  appeared  to  be  rather  piqued 


CIRCUMSTANTIAL    EVIDENCE.  91 

than  intimidated  at  this  charge  ;  and  having  sworn 
that  these  were  the  pieces  he  received  of  Harris, 
Harris  was  at  length  obliged  to  make  them  good  ;  but 
as  he  was  confident  Du  Moulin  had  injured  him  by 
a  fraud,  supported  by  perjury,  he  told  his  story 
wherever  he  went,  exclaiming  against  him  with 
great  bitterness,  and  met  with  many  persons  who 
made  nearly  the  same  complaints,  and  told  him  that 
it  had  been  a  practice  of  Du  Moulin' s  for  a  con- 
siderable time.  Du  Moulin  now  found  himself 
universally  shunned ;  and  hearing  what  Harris  had 
reported  from  all  parts,  he  brought  his  action  for  de- 
famatory words,  and  Harris,  irritated  to  the  highest 
degree,  stood  upon  his  defense ;  and,  in  the  mean 
time,  having  procured  a  meeting  of  several  persons 
who  had  suffered  the  same  way  in  their  dealings 
with  Du  Moulin,  they  procured  a  warrant  against 
him,  and  he  was  apprehended  upon  suspicion  of 
counterfeiting  the  coin.  Upon  searching  his  drawers, 
a  great  number  of  pieces  of  counterfeit  gold  were 
found  in  a  drawer  by  themselves,  and  several  others 
were  picked  from  other  money,  that  was  found  in 
different  parcels  in  his  scrutoire  ;  upon  further 
search,  a  flask,  several  files,  a  .pair  of  moulds,  some 
powdered  cjhalk,  a  small  quantity  of  aqua  regia, 
and  several  other  implements,  were  discovered.  No 


92  FAMOUS    CASES    OF 

doubt  could  now  be  made  of  his  guilt,  which  was 
extremely  aggravated  by  the  methods  he  had  taken 
to  dispose  of  the  money  he  made,  the  insolence 
with  which  he  had  insisted  upon  its  being  paid  him 
by  others,  and  the  perjury  by  which  he  had  sup- 
ported his  claim.  His  action  against  Harris  for  de- 
famation was  also  considered  as  greatly  increasing 
his  guilt,  and  everybody  was  impatient  to  see  him 
punished.  In  these  circumstances  he  was  brought 
to  his  trial,  and  his  many  attempts  to  put  off  bad 
money,  the  quantity  found  by  itself  in  his  scrutoire, 
and,  above  all,  the  instruments  of  coining,  which, 
upon  a  comparison,  exactly  answered  the  money 
in  his  possession,  being  proved,  he  was  upon  this 
evidence  convicted,  and  received  sentence  of  death. 

It  happened  that  a  few  days  before  he  was  to  have 
been  executed,  one  Williams,  who  had  been  bred  a 
seal  engraver,  but  had  left  his  business,  was  killed 
by  a  fall  from  his  horse  ;  his  wife  who  was  then 
big  with  child,  and  near  her  time,  immediately 
fell  into  fits,  and  miscarried.  She  was  soon  sensible 
that  she  could  not  live,  and  therefore  sending  for 
the  wife  of  Du  Moulin,  she  desired  to  be  left  alone, 
and  gave  her  the  following  account : 

That  her  husband  was  one  of  four,  .whom  she 
named,  that  had  for  many  years  subsisted  by  coun- 


CIRCUMSTANTIAL  EVIDENCE.  93 

terfeiting  gold  coin,  which  she  had  been  frequently 
employed  to  put  off,  and  was  therefore  intrusted 
with  the  whole  secret ;  that  another  of  these  persons 
had  hired  himself  to  Du  Moulin  as  a  kind  of  foot- 
man and  porter,  and  being  provided  by  the  gang 
with  false  keys,  had  disposed  of  a  very  considerable 
sum  of  bad  money,  by  opening  his  master's  scru- 
toire,  and  leaving  it  there  in  the  stead  of  an  equal 
number  of  good  pieces,  which  he  took  out ;  that  by 
this  iniquitous  practice,  Du  Moulin  had  been  de- 
frauded of  his  business,  his  credit,  and  his  liberty, 
to  which  in  a  short  time  his  life  would  be  added, 
if  application  was  not  immediately  made  to  save 
him.  By  this  account,  which  she  gave  in  great 
agonies  of  mind,  she  was  much  exhausted,  and  hav- 
ing given  directions  where  to  find  the  persons  whom 
she  impeached,  she  fell  into  convulsions,  and  soon 
after  expired.  The  woman  immediately  applied  to 
a  magistrate,  and  having  related  the  story  she  had 
heard,  procured  a  warrant  against  the  three  men, 
who  wdre  taken  the  same  day,  and  separately 
examined.  Du  Moulin' s  servant  steadily  denied 
the  whole  charge,  and  so  did  one  of  the  other  two  ; 
but  while  the  last  was  examining,  a  messenger  who 
had  been  sent  to  search  their  lodgings,  arrived  with 
a  great  quantity  of  bad  money,  and  many  instru- 


94  FAMOUS    CASES    OF 

ments  for  coining.  This  threw  him  into  confusion, 
and  the  magistrate,  improving  the  opportunity  by 
offering  him  his  life  if  he  would  become  an  evi- 
dence for  the  king,  he  confessed  that  he'  had  been 
long  associated  with  the  other  prisoners  and  the 
man  that  was  dead,  and  he  directed  where  other 
tools  and  money  might  be  found,  but  he  could  say 
nothing  as  to  the  manner  in  which  Du  Moulin' s 
servant  was  employed  to  put  it  off.  Upon  this  dis- 
covery, Du  Moulin' s  execution  was  suspended ; 
and  the  king's  witness  swearing  positively  that  his 
servant  and  the  other  prisoner  had  frequently 
coined  in  his  presence,  and  giving  a  particular  ac- 
count of  the  process,  and  the  part  which  each  of 
them  usually  performed,  they  were  convicted,  and 
condemned  to  die.  Both  of  them,  however,  still 
denied  the  fact,  and  the  public  were  still  in  doubt 
about  Du  Moulin.  In  his  defense,  he  had  declared 
that  the  bad  money  which  was  found  together  was 
such  as  he  could  not  trace  to  the  persons  of  whom 
he  had  received  it ;  that  the  parcels  with  which 
bad  money  was  found  mixed,  he  kept  separate, 
that  he  might  know  to  whom  to  apply  if  it  should 
appear  to  be  bad  ;  but  the  finding  of  the  moulds 
and  other  instruments  in  his  custody  was  a  par- 
ticular not  yet  accounted  for,  as  he  only  alleged 


CIRCUMSTANTIAL    EVIDENCE.  95 

in  general  terms  that  he  knew  not  how  they  came 
there,  and  it  was  doubted  whether  the  impeach- 
ment of  others  had  not  been  managed  with  a  view 
to  save  him  who  was  equally  guilty,  there  being 
no  evidence  of  his  servant's  treachery  but  that  of 
a  woman  who  was  dead,  reported  at  second  hand 
by  the  wife  of  Du  Moulin,  who  was  manifestly 
an  interested  party.  He  was  not,  however,  charged 
by  either  of  the  convicts  as  an  accomplice,  a  par- 
ticular which  was  strongly  urged  by  his  friends  in 
his  behalf;  but  it  happened  that  while  the  public 
opinion  was  thus  held  in  suspense,  a  private 
drawer  was  discovered  in  a  chest  that  belonged  to 
his  servant,  and  in  it  a  bunch  of  keys,  and  the 
impression  of  one  in  wax ;  the  impression  was 
compared  with  the  keys,  and  that  which  it  cor- 
responded with  was  found  to  open  Du  Moulin' s 
scrutoire,  in  which  the  bad  money  and  implements 
had  been  found.  When  this  particular,  so  strong 
and  unexpected,  was  urged,  and  the  key  produced, 
he  burst  into  tears,  and  confessed  all  that  had  been* 
alleged  against  him.  He  was  then  asked  how  the 
tools  came  into  his  master's  scrutoire;  and  he 
answered,  that  when  the  officers  of  justice  came 
to  seize  his  master,  he  was  terrified  for  himself, 
knowing  that  he  had  in  his  chest  these  instru- 


96  FAMOUS    CASES    OF 

ments,  which  the  private  drawer  would  not  con- 
tain, and  fearing  that  he  might  be  included  in  the 
warrant,  his  consciousness  of  guilt  kept  him  in 
continual  dread  and  suspicion ;  that  for  this  reason, 
before  the  officers  went  up  stairs,  he  opened  the 
scrutoire  with  his  false  key,  and  having  fetched 
his  tools  from  his  box  in  the  garret,  he  deposited 
them  there,  and  had  just  locked  it  when  he  heard 
them  at  the  door. 

In  this  case,  even  the  positive  evidence  of  Du 
Moulin,  that  the  money  he  brought  back  to  Harris 
was  the  same  he  had  received  of  him,  was  not  true, 
though  Du  Moulin  was  not  guilty  of  perjury,  either 
willfully  or  by  neglect,  inattention  or  forgetfulness. 
And  the  circumstantial  evidence  against  him,  how- 
ever strong,  would  only  have  heaped  one  injury 
upon  another,  and  have  taken  away  the  life  of  an 
unhappy  wretch,  from  whom  a  perfidious  servant 
had  taken  everything  else. 


CIRCUMSTANTIAL    EVIDENCE.  97 


XVII. 

IN  the  town  of  M ,  in  Germany,  resided  a 

goldsmith,  named  Christopher  Ruprecht,  aged  up- 
wards of  sixty ;  rich,  illiterate,  quarrelsome,  cov- 
etous ;  rude  in  speech,  vulgar  in  his  habits ;  whose 
chief  indulgence  consisted  in  frequenting  low  ale- 
houses, and  mingling  in  such  haunts  with  the  most 
disreputable  among  the  lower  classes  of  his  fellow 
citizens.  His  selfishness  and  repulsive  manners 
had  alienated  from  him  all  his  relations,  with  the 
exception  of  a  sister,  who  resided  with  him,  and  a 
married  daughter,  who  still  continued,  notwithstand- 
ing his  peculiarities  of  temper,  to  visit  him  regu- 
larly, though  as  much  from  interest  perhaps  as 
affection. 

The  favorite  resort  of  Ruprecht  was  a  small  ale- 
house of  the  meanest  order,  situated  at  the  end  of 
a  dark  winding  lane,  and  receiving  as  a  title,  from 
its  gloomy  situation,  and  the  orgies  of  which  it  was 
the  scene,  the  emphatic  monosyllable  usually  ap- 
plied to  the  place  of  darkness.  About  half-past 
eight  o'clock,  on  the  evening  of  the  7th  of  Febru- 


FAMOUS    CASES     OF 


ary,  1817,  the  goldsmith,  repaired  to  this  place 
according  to  his  custom,  took  his  seat  among  the 
circle'  which  generally  assembled  round  the  inn 

fire  on  the  first  floor,  and  in  his  usual  overbearing 

' « 
style,  joined  in  the  current  conversation.     In    this 

manner  the  time  was  spent  till  past  ten  o'clock, 
when  Ruprecht  despatched  the  landlord  to  the 
ground  floor  for  a  further  supply  of  beer.  As  the 
master  of  the  house  was  reascending  the  stairs  to 
the  company  with  the  liquor  wanted,  a  voice  from 
the  passage  or  outer  door  below,  was  heard  in- 
quiring if  Ruprecht  was  above ;  and  on  the  land- 
lord replying — without  turning  his  head — in  the 
affirmative,  he  was  desired  by  the  person  below  to 
tell  the  goldsmith  to  come  down.  On  receiving  the 
message,  Ruprecht  rose  immediately,  and  left  the 
room.  A  minute  had  scarcely  elapsed  afterwards, 
when  the  company  heard  distinctly  a  loud  groan- 
ing from  below  stairs,  followed  by  a  sound  as  of  a 
heavy  body  falling  in  the  passage.  All  present,  to 
the  number  of  eleven,  hurried  down  stairs,  where 
they  found  the  goldsmith  lying  near  the  house 
door,  still  alive,  but  covered  with  blood  flowing 
from  a  large  wound  on  his  head.  At  a  little  dis- 
tance lay  his  leather  cap,  which  had  been  cut 
through  by  the  blow.  The  only  words  which  the 


CIRCUMSTANTIAL    EVIDENCE.  99 

wounded  man  uttered,  when  lifted  up,  were:  "Th% 
villain — the  villain  with  the  axe ! "  and  once  after- 
wards, "  My  daughter,  my  daughter  !  "  She  was 
immediately  sent  for,  but  his  mind  apparently 
wandered,  and  he  did  not  recognize  her. 

No  trace  of  the  author  of  the  deed,  or  of  any 
weapon,  was  visible  in  the  neighborhood.  On 
examination,  the  wound  was  found  to  be  about 
four  inches  long,  extending  along  the  left  side  of 
the  head  from  front  to  back,  and  deeper  in  the 
center  than  at  the  ends.  From  the  force  required 
to  inflict  such  a  blow,  it  was  obvious  that  it  must 
have  been  done  outside  the  door,  as  the  passage 
within  was  so  low,  that  no  weapon  could  have 
been  raised  sufficiently  high  to  produce  such  an 
injury.  After  receiving  it,  the  goldsmith  must 
have  been  able  to  stagger  into  the  passage  before 
falling.  On  the  left  side  of  the  door  without,  was 
a  stone  seat,  two  feet  high,  on  which,  it  was  sup- 
posed, the  murderer  must  have  taken  his  stand, 
awaiting  his  victim,  and  directed,  from  this  posi- 
tion, the  deadly  stroke.  Though  Ruprecht's  words 
implied  that  the  weapon  had  been  an  axe,  the 
medical  inspector  was  of  opinion  that  a  saber, 
wielded  by  an  experienced  hand,  was  more  likely 
to  have  been  the  instrument.  The  main  hope  of 


i  op  FAMOUS    CASES    OF 

^xplaining  this  point,  and  of  discovering  the  author 
of  the  deed,  rested  on  the  revelations  which  the 
goldsmith  himself  might  be  able  to  make.  It  was 
not,  however,  till  the  evening  of  the  following  day, 
that  he  appeared  sufficiently  in  his  senses  to  war- 
rant the  judge  in  commencing  his  examination. 
The  wounded  man's  answers  were  given  in  mono- 
syllables. He  was  asked : 

"Who  struck  you  ? " 

"  Schmidt." 

"What  is  this  Schmidt — where  does  he  reside  ? " 

"  In  the  Most."    (The  Most  is  a  street  of  the  town.) 

"With  what  did  he  strike  you?" 

"A  hatchet." 

"How  did  you  know  him?" 

"By  his  voice." 

"Was  he  indebted  to  you?"  Ruprecht  shook 
Ms  head. 

"What  was  his  motive?" 

"A  quarrel." 

The  wounded  man  was  so  much  exhausted  by 
these  responses,  that  scarcely  any  other  questions 
could  be  put  to  him,  excepting  the  request,  that  he 
would  again  name  the  individual  who  had  struck 
Mm.  His  repeated  answer  was,  "  Schmidt- 
woodcutter." 


CIRCUMSTANTIAL    EVIDENCE.  101 

Who,  then,  was  this  Schmidt  ? — a  name,  it  is  to 
be  observed,  not  less  common  in  Germany  than 
Smith  is  in  England.  It  turned  out  that  there 
were  three  Schmidts,  woodcutters,  in  the  town, 
two  of  whom  were  brothers,  and  lived  in  the  Most, 
the  street  indicated  by  the  goldsmith ;  while  the 
third,  Christopher  Schmidt,  lived  in  the  street  called 
the  Hohen  Pilaster.  The  brothers  were  usually 
named  from  their  different  heights,  the  Great 
Schmidt  and  the  Little  Schmidt,  and  they  proved 
to  be  old  acquaintances  of  Ruprecht,  bat  to  have 
recently  ceased  to  be  on  familiar  terms  with  him, 
chiefly  because  the  Great  Schmidt  had  given  evi- 
dence against  him  in  an  action  of  damages.  Re- 
garding Christopher  Schmidt,  it  was  ascertained 
that,  at  a  former  period  of  his  life,  he  had  been 
imprisoned  under  a  charge  of  accession  to  a  rob- 
bery. Before  proceeding  to  the  arrest  of  any  of 
these  individuals,  Ruprecht,  whose  skull  had  in 
the  interval  been  trepanned,  in  order  to  raise  the 
depressed  bone,  was  again  asked,  at  a  favorable 
moment,  a  string  of  questions  similar  to  the  former, 
and  gave  the  same  responses,  excepting  in  one  im- 
portant point.  On  being  asked  whether  the  Great 
or  the  Little  Schmidt  was  the  guilty  person,  he 
tried  to  speak,  but  failed.  He  was  then  asked  if 


102  FAMOUS    CASES    OF 

the  Most  was  the  street,  but  was  silent.  To  the 
next  question,  "If  the  Hohen  Pilaster  was  the 
man's  residence?"  he  answered  with  difficulty, 
but  distinctly,  "Yes,"  and  then  relapsed  into  the 
state  of  insensibility  which  was  common  to  him. 

All  three  Schmidts  being  thus  implicated  in 
suspicion,  they  were  taken  into  custody,  for  the 
purpose,  in  the  first  place,  of  being  confronted  with 
the  wounded  man,  and  to  have  the  guilty  indi- 
vidual, if  possible,  identified  by  him.  But  Ru- 
precht,  though  sensible,  was  unable  to  open  his 
eyes,  and  the  main  object  of  the  interview  was 
thus  defeated.  The  behavior  of  the  suspected  per- 
sons was,  however,  so  very  different,  as  to  excite 
the  strongest  hopes  that  the  matter  would  be 
cleared  up.  The  brothers  Schmidt  were  calm  and 
composed  on  being  brought  into  the  goldsmith's 
presence ;  they  spoke  to  him,  called  him  by  name, 
and  expressed  the  greatest  sympathy  for  his  situa- 
tion. Christopher  Schmidt,  on  the  contrary,  was 
agitated  and  restless ;  when  asked  if  he  knew  the 
person  in  bed,  he  first  said  he  did  not  know  him, 
and  then  that  he  did  know  him ;  first,  that  he  re- 
mained in  his  mother-in-law's  house  on  the  night 
of  the  murder  till  eleven,  and  afterwards,  that  he 
was  in  his  own  house  in  bed  at  nine.  He  at  the 


CIRCUMSTANTIAL    EVIDENCE.  103 

same  time  protested  his  entire  innocence,  and  ap- 
pealed to  the  testimony  of  hid  wife,  his  mother-in- 
law,  and  his  neighbors.  His  agitation  and  con- 
tradictions drew  the  suspicion  of  all  from  the  other 
Schmidts  upon  him,  and  he  was  committed  by  the 
judge  to  prison.  All  hope  of  further  information 
from  the  victim  himself,  was  put  an  end  to  by  his 
death  on  the  following  day,  the  second  from  the 
accident. 

Subsequent  investigations  tended  to  increase  the 
suspicions  against  Christopher  Schmidt,  which  his 
behavior  on  the  first  occasion  "had  awakened.  On 
inspecting  his  house,  the  handle  of  his  axe,  near 
the  blade,  was  found  to  be  streaked  with  blood ! 
The  truth  of  the  report  as  to  his  former  imprison- 
ment he  did  not  attempt  to  deny,  but  alleged  that 
he  had  been  merely  made  the  innocent  instrument 
of  conveying  stolen  property  from  one  place  to 
another.  On  undergoing  another  examination,  his 
contradictions  were  even  more  glaring  than  before. 
To  the  question,-  "How  he  came  to  know  Ruprecht 
in  bed,  when  he  stated  that  he  had  never  seen  him 
before,"  he  said  that  he  knew  him  from  having 
heard  of  his  accident,  and  from  being  aware  of  the 
object  of  his  own  visit  to  the  goldsmith's  house. 
He  stated  that  he  had  been  with  his  wife  and  child 


104  FAMOUS    CASES    OF 

to  his  mother-in-law's  house,  where  they  wrought 
at  some  in-door  work,  to  save  candles  at  home. 
It  was  impossible  to  ascertain  from  his  answers 
the  time  at  which  he  had  come  from  his  mother-in- 
law's  house  to  his  own.  He  first  averred  that  he 
had  come  home  with  his  child  at  nine,  and  that  his 
wife  had  come  an  hour  after  him ;  then,  that  his 
wife  had  returned  with  him  at  ten  o'clock ;  then, 
that  he  was  asleep,  and  did  not  know  when  she 
came ;  and  made  fresh  contradictions,  in  short,  with 
regard  to  time,  at  every  query  put  to  him.  All 
these  things — his  variations,  his  agitation,  his  down- 
cast and  suspicious  look,  his  previous  imprison- 
ment, the  spots  upon  his  axe,  the  expression  of 
the  dying  man,  which  pointed  most  strongly  to 
him — when  taken  together,  formed  a  strong  com- 
bination of  circumstances  against  Christopher 
Schmidt.  Indeed,  his  guilt  was  scarcely  doubted  of 
by  any  one. 

On  the  other  hand,  after  men's  minds  became 
capable  of  calmer  reflection  on  the  -subject,  the  very 
grossness  of  these  contradictions  seemed  to  lead  to 
the  inference,  that  they  arose  from  a  deficiency  of 
intellect,  or  from  a  mind  disordered  by  temporary 
anxiety  and  fear,  or  from  both  causes,  rather  than 
from  a  desire  to  conceal  the  truth.  The  report  of 


CIRCUMSTANTIAL    EVIDENCE.  105 

the  neighbors,  when  their  evidence  was  collected, 
corroborated  this  conjecture ;  his  stolidity  and  dull- 
ness of  intellect  was  such  as  to  have  acquired  for 
him  the  common  nickname  of  "The  Sheep."  He 
never  was  capable,  it  was  found,  of  expressing  him- 
self clearly,  and  it  followed  that,  under  such  cir- 
cumstances as  a  charge  of  murder,  this  deficiency 
must  evidently  have  been  greatly  aggravated. 
From  such  a  character  as  this,  the  statement, 
illogical  as  it  was,  that  he  knew  Ruprecht  in  bed 
from  having  heard  of  his  accident,  was  natural 
enough.  With  regard  to  the  contradictory  repre- 
sentations regarding  the  hour  of  his  return,  the 
inconsistency  might  be  in  part  explained  away  by 
supposing  his  wife  to  have  first  gone  home  with 
him,  seen  him  to  bed  with  the  child,  and  after- 
wards to  have  returned  to  her  mother's  for  a  short 
period  before  she  finally  came  to  sleep  in  her  own 
house.  This  was,  in  fact,  substantially  proved  by 
subsequent  investigations  of  Schmidt's  mother-in- 
law  and  wife.  They,  with  other  witnesses,  proved 
that  the  wife,  having  seen  her  husband  home,  went 
back  to  her  mother's  to  finish  some  work,  and  after 
an  hour  or  an  hour  and  a  half  s  stay,  returned  to 
her  own  domicile.  It  was  remarkable,  however, 
that  these  two  witnesses  differed  considerably  with 


io6  FAMOUS    CASES    OF 

respect  to  the  hours  at  which  these  events  took 
place.  These  discrepancies  were  held  to  arise  from 
the  fact,  that  the  night  in  question  was  a  long  and 
dark  one  in  February,  and  that  no  clocks  were 
within  reach  of  the  parties.  This  gave  a  favora- 
ble color  also  to  Schmidt's  own  inconsistencies  as 
to  time,  particularly  when  taken  in  connection  with 
the  man's  unquestionable  stupidity.  ; 

But — admitting  the  wife's  statement  to  be  cor- 
rect— Christopher  Schmidt  was  left  alone  for  an 
hour  and  a  half  at  the  very  time  the  deed  was  corn- 
committed.  The  ale-house  where  it  took  place, 
however,  was  a  mile  and  a  quarter  from  Schmidt's 
dwelling ;  and  to  have  been  the  actor  in  the  deed, 
he  must  have  sprung  from  bed  at  the  moment  of 
his  wife's  departure,  hurried  to  the  spot,  com- 
mitted the  murder,  and  then  been  in  bed  a  quarter 
of  an  hour  afterwards.  Was  this  energetic  vil- 
lainy likely  to  have  been  exhibited  by  one  so  slow 
and  sluggish  in  intellect  and  behavior  as  Schmidt 
was  proved  to  be?  The  thing  was  felt  by  all,  on 
reflection,  to  be  barely  possible. 

But,  again,  the  blood  on  the  handle  of  the  axe? 
The  accused,  on  being  questioned  respecting  this, 
said,  that  if  such  stains  existed,  of  which  he  knew 
nothing,  they  must  have  proceeded  from  a  swell- 


CIRCUMSTANTIAL    EVIDENCE.  107 

ing  in  the  hand — which  he  showed — that  had 
burst  some  days  before.  The  swelling,  it  was 
replied,  is  in  the  right  hand,  while  the  stains  are 
upon  the  upper  of  the  handle,  which  is  always 
held  in  the  left  hand.  "I  am  left-handed,"  said 
the  accused ;  and  on  inquiry  among  his  asso- 
ciates, it  was  found  to  be  the  case.  Further  ex- 
amination, also,  showed  that  the  axe  of  Schmidt 
could  not  have  been  the  instrument  of  death,  the 
wound  in  the  head  being  four  inches  long,  while 
the  axe's  blade  was  barely  three  inches.  A  strong 
additional  testimony  in  Schmidt's  favor,  was  the 
discovery  that  he  had  actually  been  free  of  all 
guilt,  as  he  had  represented,  on  the  occasion  of 
his  former  imprisonment,  and  that  his  general 
character  everywhere  was  that  •  of  a  sober,  indus- 
trious, peaceable  man. 

Thus,  one  by  one,  the  grounds  of  suspicion 
which  had  at  first  appeared  to  be  assuming  so 
firm  and  compact  a  form,  crumbled  away,  and, 
though  not  yet  finally  liberated,  it  was  apparent  to 
all  that  Christopher  Schmidt  would  be  acquitted. 
But,  as  the  clouds  of  suspicion  passed  from  Chris- 
topher, they  gathered  for  a  time  round  the  heads 
of  his  namesakes,  the  Great  and  Little  Schmidts 
of  the  Most.  These  men,  it  was  recollected,  knew 


io8  FAMOUS    CASES    OF 

Kuprecht,  which  Christopher  did  not ;  they  had, 
moreover,  been  actually  placed  in  an  inimical  posi- 
tion with  respect  to  the  deceased.  They  had  borne 
evidence  against  him,  in  an  action  instituted  by 
two  respectable  surveyors,  whose  names  the  gold- 
smith had  publicly  vilified.  Ruprecht  had  lost 
the  cause,  and  had  been  sentenced  to  a  short  con- 
finement on  bread  and  water.  At  his  liberation,  he 
had  set  on  foot  an  action  of  retaliation  against  the 
surveyors,  which  was  still  undecided  at  the  time 
of  the  murder.  Could  the  surveyors  have  made 
use  of  their  former  witnesses,  the  Schmidts,  to  rid 
themselves  of  their  pertinacious  opponent  ?  The 
high  character  of  the  men  rendered  this  supposition 
improbable;  and  after  it  had  lived  for  but  a  short 
time  on  the  public  breath,  it  was  completely  ex- 
tinguished by  the  coming  forward  of  several  wit- 
nesses, who  spoke  to  the  fact  of  the  brothers 
Schmidt  having  come  home  early  on  the  night  of 
the  goldsmith's  death,  and  not  having  left  the 
house  till  next  morning. 

While  all  grounds  for  suspicion  to  rest  upon 
were  thus  disappearing  as  far  as  the  parties  first 
implicated  were  concerned,  some  new  discoveries, 
or  rather  conjectures,  were  made,  which  drew  the 
eyes  of  justice  to  an  entirely  different  quarter. 


CIRCUMSTANTIAL    EVIDENCE.  109 

Two  other  Schmidts,  woodcutters  also,  were  found 
out,  not  living  in  the  town  indeed,  but  in  the 
suburbs.  One  of  these  men  was  woodman  to 
Berenger,  Ruprechfs  son-in-law,  and  this  circum- 
stance seems  to  have  originated  a  new  train  of 
thinking  in  the  minds  of  the  official  persons  of  the 
town,  though  no  ground  of  suspicion  could  be  found 
against  the  newly  discovered  Schmidts.  One  of 
Ruprecht's  first  expressions,  it  will  be  remembered, 
after  receiving  the  blow,  was,  "My  daughter!  my 
daughter!"  These  words  had  been  naturally  in- 
terpreted at  the  time  into  an  expression  of  anxiety 
to  see  her,  but  circumstances  subsequently  emerg- 
ing, seemed  to  render  it  doubtful  whether  his  ex- 
clamation did  not  bear  a  less  favorable  meaning. 
The  matrimonial  life  of  Berenger  and  his  wife  had 
long  been,  it  appeared,  an  unhappy  one ;  Berenger 
had  often  made  complaints  against  his  wife  to  her 
father.  Recently,  some  steps  taken  by  the  husband 
had  ended  in  making  the  wedded  pair's  life  a  little 
more  harmonious,  but  they  had,  at  the  same  time, 
exasperated  Ruprecht's  mind  in  the  highest  de- 
gree against  Berenger.  A  short  time  before  his 
death,  the  goldsmith  had  been  heard  to  call  his 
son-in  law  a  villain  ;  and  he  had  also  for  some  time 
past  entertained  the  resolution  of  making  a  will, 


no  FAMOUS    CASES    OF 

leaving  all  to  his  daughter,  and  beyond  her  hus- 
band's control.  This  resolve  he  had  announced  to 
his  daughter,  about  two  months  before  his  death, 
and  also  to  his  apprentice,  Hogner.  Nay,  within  a 
few  hours  of  his  accident,  he  had  sent  for  Hogner 
to  assist  in  arranging  his  papers,  preparatory  to 
the  execution  of  the  will  on  the  following  Sunday. 
This  intention  he  had  expressed  in  the  hearing  of 
of  the  maid  servant.  These  remarkable  circum- 
stances directed  the  attention  of  justice  to  Berenger, 
who  might  have  heard  of  the  old  man's  determina- 
tion ;  and  a  sufficient  motive  for  a  desire  on  his 
part  to  get  rid  quickly  of  the  goldsmith  would 
thus  have  been  established. 

Berenger,  according  to  account,  showed  no  emo- 
tion or  sympathy  on  hearing  of  the  accident,  and 
his  wife,  it  was  said,  showed  also  a  want  of  feeling. 
One  of  her  first  concerns  was  to  see  whether  her 
father  had  his  keys  about  him ;  and  having  ascer- 
tained that  he  had,  she  took  possession  of  and 
walked  away  with  them.  She  had,  besides,  shown 
a  strong  anxiety  to  criminate  one  of  the  Schmidts, 
reporting  several  speeches  against  him,  from  her 
father's  lips,  which  no  one  else  had  heard.  Several 
other  minor  incidents  seemed  to  bear  against  the 
Berengers.  In  interpreting  her  father's  dying  words 


CIRCUMSTANTIAL    EVIDENCE.  m 

with  this  view,  it  was  thought  that  the  old  man, 
feeling  himself  struck  with  what  he  conceived  to  be 
an  axe,  would  immediately  revert  in  his  mind  to 
the  woodcutters,  the  Schmidts,  who  had  borne  a 
part  against  him  in  the  suit  then  pending,  and 
which  occupied  at  the  time  much  of  his  attention. 
This  was  the  sense  now  put  upon  the  goldsmith's 
mention  of  the  name  of  Schmidt. 

Here  also,  however,  as  in  the  former  cases,  the 
grounds  of  suspicion  vanished,  one  by  one,  into  thin 
air.  That  the  words  "my  daughter"  bore  no  mean- 
ing unfavorable  to  the  Berengers,  was  proved  by 
the  statement  of  Ruprecht's  sister,  that  such  was 
her  brother's  common  expression  when  anything 
troubled  him ;  it  was  also  proved,  on  better  inquiry, 
that  Berenger's  wife  had  shown  deep  feeling  for  her 
father,  and  had  only  taken  away  his  keys  on  the 
surgeon  suggesting  that  the  murder  might  be  a  pre- 
limary  to  robbery;  it  was,  however,  sworn  by  the 
wife,  the  apprentice,  and  the  maid  servant,  that  they 
had  never  spoken  of  the  will — a  thing,  indeed,  most 
unlikely  for  the  wife  to  do,  when  she  alone  was  to 
to  be  benefited  by  it;  and,  finally,  there  was  dis- 
tinct evidence  that  Berenger  himself,  at  least,  had 
not  been  the  murderer,  as,  at  the  time  of  it,  he  was 
quietly  seated  in  the  parlor  of  the  Golden  Pish.  By 


ii2  FAMOUS    CASES    OF 

this  and  other  evidence,  the  suspicion  against  the 
Berengers  fell  to  peices. 

Even  after  all  these  failures,  the  investigation 
was  not  abandoned.  A  soldier,  who  was  indebted 
to  Ruprecht,  and  who  had  been  threatened  by  him, 
on  the  day  of  the  accident,  with  hard  measures,  was 
the  person  next  brought  under  examination.  After 
the  fabric  of  evidence  in  this  case  also  had  gathered 
strength,  it  was  at  once  overturned  by  a  clear  proof 
of  an  alibi. 

Here,  at  last,  justice  was  obliged  to  give  up  the 
pursuit ;  nor  has  any  light  since  been  thrown  on 
this  strange  story. 


CIRCUMSTANTIAL    EVIDENCE.  113 


XVIII. 

THE  following  narrative,  while  it  strikingly  ex- 
hibits the  fallible  and  uncertain  nature  of  circum- 
stantial evidence,  affords  also  a  convincing  proof  of 
the  indispensable  necessity  of  procuring  medical 
testimony  of  the  highest  order,  in  all  criminal 
cases  relating  to  injuries  of  the  person.  The  nar- 
rator, Mr.  Perfect,  a  surgeon  at  Hammersmith,  sent 
the  statement  to  the  editor  of  the  Lancet  (Mr. 
Wakley)  in  January,  1839  :— 

"It  is  now  thirty  years  ago,  that  accidentally 
passing  the  Packhorse,  Turnham  Green,  my  atten- 
tion was  attracted  by  a  mob  of  persons  of  the 
lowest  order  assembled  around  the  door  of  that  inn, 
who  were  very  loud  in  their  execrations  against 
some  person  who  was  suspected  of  having  murdered 
his  brother ;  in  corroboration  of  which,  I  was  told 
that  his  bones  were  found  near  the  premises  where 
he  formerly  resided,  upon  view  of  which  a  jury 
was  then  sitting,  after  an  adjournment  from  the 
day  preceding.  I  found  that  two  surgeons  had 


ii4  FAMOUS    CASES     OF 

been  supoenaed  to  inspect  the  remains,  and  I  had 
no  doubt  but  that  every  information  as  to  their 
character  had  been  obtained ;  curiosity  alone,  there- 
fore, induced  me  to  make  way  into  the  room,  where 
I  found  that  the  coroner,  and,  I  believe,  a  double 
jury,  were  sitting  for  the  second  day,  and  were 
engaged  in  an  investigation  which  tended  to  show 
that  a  farmer  and  market  gardner  at  Suttoncourt 
Farm,  had,  a  few  years  before,  a  brother  living 
with  him,  who  was  engaged  in  the  farm,  but  whose 
conduct  was  dissolute  and  irregular  to  a  degree 
that  often  provoked  the  anger  of  his  elder  brother, 
and  sometimes  begat  strife  and  violence  between 
them ;  that  the  temper  of  the  elder  brother  was  as 
little  under  control  as  the  conduct  of  the  younger ; 
and,  in  fine,  that  they  lived  very  uncomfortably 
together. 

"  One  winter  night,  when  the  ground  was  covered 
with  snow,  the  younger  brother  absconded  from  the 
house  (for  they  both  lived  together),  by  letting  him- 
self down  from  his  chamber  window ;  and  when  he 
was  missed  the  ensuing  morning,  his  footsteps  were 
clearly  tracked  in  the  snow  to  a  considerable  dis- 
tance, nor  were  there  any  other  footsteps  but  Ms 
own.  Time  passed  on,  and  after  a  lapse  of  some  few 
years  no  tidings  were  heard  of  his  retreat,  nor  per- 


CIRCUMSTANTIAL  EVIDENCE.  115 

haps  have  there  ever  been  since.  Some  alterations 
in  the  grounds  surrounding  the  house  having  been 
undertaken  by.  a  subsequent  tenant  (for  the  elder 
brother  had  then  left  the  farm),  a  skeleton  was 
dug  up,  and  the  circumstance  appeared  so  con- 
clusive that  one  brother  had  murdered  the  other, 
that  the  popular  clamor  was  raised  to  the  utmost, 
and  a  jury  impanneled  to  investigate  the  case. 

"After  listening  attentively  to  these  details,  I 
ventured  to  request  of  the  coroner  to  be  allowed 
to  examine  the  bones,  which  I  found  were  con- 
tained in  a  hamper  basket  at  the  further  end  of 
the  room,  and  I  felt  much  flattered  by  his  imme- 
diate compliance,  for  he  desired  the  parish  beadle, 
who  was  in  attendance,  to  place  them  upon  the 
table  ;  and  having  himself  disposed  them  in  their 
natural  order,  I  found  that  they  represented  a 
person  of  short  statute,  and  from  the  obliteration 
of  the  sutures  of  the  skull,  and  the  worn-down 
state  of  the  teeth,  must  have  belonged  to  an  aged 
person.  But  what  was  my  surprise  when  I  recon- 
structed the  bones  of  the  skeleton,  and  found  the 
lower  bones  of  the  trunk  to  be  those  of  a  female. 
I  immediately  communicated  the  fact  to  the  jury, 
and  requested  that  the  two  medical  men  who  had 
before  given  their  opinions  might  be  sent  for,  one 


I 


n6  FAMOUS    CASES    OF 

of  whom  attended,  and  without  a  moment's  hesita- 
tion corroborated  my  report. 

"I  need  not  add  that  the  proceedings -were  in- 
stantly at  an  end,  and  an  innocent  man  received 
the  amende  honorable,  in  the  shape  of  an  apology, 
from  all  present,  in  which  the  coroner  heartily 
joined.  It  has  since  been  proved  beyond  all  doubt 
that  the  spot  where  the  bones  were  found  was  for- 
merly the  site  of  a  large  gravel  pit,  in  which  hordes 
of  gipsies  not  only  assembled,  but  occasionally 
buried  their  dead,  and  perhaps  more  skeletons  are 
yet  to  be  found  in  that  vicinity." 


djfc 


CIRCUMSTANTIAL    EVIDENCE.  117 


XIX. 

IN  the  year  1841,  at  Gibraltar,  there  occurred  one 
of  those  extraordinary  cases,  which  show  us  how  in- 
effectively the  romancist,  even  when  his  imagination 
is  strained  to  the  uttermost,  can  portray  the  extremes 
of  passion  of  which  human  nature  is  susceptible.  A 
communication,  bearing  date  Feberuary  20th,  from 
the  rock-built  fortress  which  England  keeps  as  a  key 
to  the  Mediterranean,  relates  the  following  par- 
ticulars : 

A  respectable  merchant,  named  James  Baxwell, 
born  at  London,  had  removed  in  early  life  to  Gibral- 
tar, induced  partly  by  the  circumstance  of  his  being 
of  the  same  religious  persuasion  to  which  the  people 
of  his  adopted  country  belonged.  For  many  years 
he  occupied  a  small  dwelling  near  the  base  of  Mount 
St.  Michael,  so  renowned  for  its  caves  and  crystal- 
lizations. He  carried  on  a  successful  traffic  in  all  the 
articles  of  British  manufacture  introduced  into  Spain. 
He  acquired,  in  truth,  a  very  considereble  fortune  in 
this  way.  All  the  country  knew  that  he  had  a  large 
amount  of  treasure  lying  by  him,  not  to  speak  of  the 
capital  belonging  to  him,  which  was  embarked  in 


n8  FAMOUS    CASES    OF 

commerce.     His  name  was  one  of  credit  in  all  the 
principal  houses  of  exchange  in  Europe. 

James  Baxwell  had  a  daughter,  an  only  daughter, 
aged  seventeen,  and  of  remarkable  beauty.  Her 
countenance  and  figure  combined  in  a  most  agreeable 
manner  the  peculiar  charms  of  the  Englishman  with 
the  soft  and  languishing  characteristics  of  the 
Spaniard.  Young  as  she  was,  she  had  been  for  some 
two  or  three  years  an  object  of  devoted  admiration  to 
all  the  youths  around  Gibraltar.  At  church  they 
devoured  her  with  their  eyes ;  and  many,  many  a 
one  thought  to  himself  that  happy  above  all  men 
would  be  he  who  could  win  the  smiles  of  Elezia  Bax- 
well. But  Elezia  bestowed  her  smiles  upon  no  one. 
She  seemed,  to  those  whose  involuntary  sighs  she 
excited,  to  carry  maidenly  modesty  to  freezing  cold- 
ness. At  mass,  Tier  eyes  were  ever  bent  upon  her 
book,  regardless  of  all  the  glances  cast  upon  her  by 
others. 

Such  was,  at  least,  the  case,  till  shortly  before  the 
events  to  be  narrated.  At  length,  however,  Elezia 
did  see  one  who  awakened  in  herself  some  of  the 
emotions  which  she  had  caused  in  others.  At  mass, 
one  day,  she  observed  the  eyes  of  a  young  stranger 
fixed  upon  her  with  an  expression  of  admiration  and 
respect.  To  her  he  seemed  a  being  superior  to  all 


CIRCUMSTANTIAL    EVIDENCE.  119 

the  young  men  she  had  ever  yet  beheld.  From  that 
moment,  her  calm  and  self-possessed  demeanor  left 
her  for  ever.  Abroad  and  at  home,  she  was  restless 
and  uneasy.  But,  ere  long,  the  stranger  found  an 
opportunity  of  being  introduced  to  her,  and  mutual 
avowals  of  love  followed  at  no  great  distance  of 
time. 

Assured  of  the  affections  of  Elezia,  the  young 
stranger  then  presented  himself  to  Mr.  Baxwell.  "  I 
am  named  William  Katt,"  said  he  to  the  merchant; 
"I  am,  like  yourself,  an  Englishman;  I  am  of 
respectable  family  and  character,  young,  and 
wealthy.  Give  me  your  daughter  —  we  love  one 
another." 

"Never!"  said  James  Baxwell,  to  whom  the 
position  and  circumstances  of  the  young  man  were 
not  unknown  ;  "  never  !  You  belong  to  the  denomi- 
nant  religion  of  England,  by  which  my  fathers  suf- 
fered so  much  and  so  long.  You  are  a  Lutheran  and 
my  daughter  is  a  Catholic.  Such  a  union  could  not  be 
happy  ;  nor  will  I  ever  give  my  consent  to  it.  Elezia 
shall  never  be  yours!"  The  daughter,  informed  of 
this  declaration,  threw  herself  at  the  feet  of  her 
father,  and  endeavored  to  move  him  from  his  pur- 
pose. Her  lover  did  the  same.  But  the  father 
remained  obstinate,  and  a  violent  scene  took  place 


120  FAMOUS    CASES     OF 

between  Elezia  and  her  parent.  The  blood  of  the 
fiery  South  coursed  in  the  daughter's  veins,  and  she 
declared  that  she  would  marry  the  object  of  her 
choice,  despite  of  all  opposition.  James  Baxwell,  on 
the  other  hand,  declared  that  he  would  sooner  kill 
her  with  his  own  hands,  than  see  her  carry  such  a 
resolution  into  effect.  As  to  William  Katt,  who 
stood  by  at  this  scene,  he  kept  silence.  What 
thoughts  were  revolving  in  his  mind,  it  would  be 
difficult  to  say. 

Two  days  afterwards,  an  alarming  noise  was  heard 
by  the  neighbors  to  issue  from  a  cave  immediately 
adjoining  the  merchant's  house,  and  used  by  him  for 
some  domestic  purposes.  The  noise  consisted  at 
first  of  loud  cries,  winch  gradually  became  fainter, 
and  at  length  died  altogether  away.  The  auditors 
looked  at  each  other  with  amazement,  and  many 
were  the  conjectures  as  to  the  cause  of  the  sounds 
alluded  to.  A  solution  of  the  mystery  was  not  long 
in  suggesting  itself.  Elezia  had  disappeared ;  she 
was  no  longer  to  be  seen  about  her  father's  house. 
After  many  low  murmurs  had  circulated,  the  father 
was  interrogated  respecting  his  daughter.  He  said 
that  she  was  missing,  certainly  ;  but  whither  she  had 
gone,  he  knew  not.  He  had  nothing  whatever  to  do, 
he  said,  with  her  disappearance. 


CIRCUMSTANTIAL    EVIDENCE.  121 

This  explanation  was  not  satisfactory.  The 
whisper  went  abroad  that  James  Baxwell  had 
assassinated  his  daughter,  to  prevent  her  marriage 
with  William  Katt,  and,  ultimately,  this  conjecture 
was  so  forcibly  pressed  on  the  attention  of  the  public 
authorities,  that  they  were  compelled  to  arrest  James 
Baxwell,  and  inquire  into  the  matter.  The  dwelling 
of  the  merchant  was  examined,  but  nothing  crimina- 
tory was  found.  "  The  cave !  the  cave  is  the  place ! " 
cried  some  of  the  crowd.  The  magistrates  then 
descended  into  the  cave,  and  there,  on  lifting  some 
loose  stones,  they  found  a  portion  of  Elezia's  dress, 
sprinkled  all  over  with  blood.  They  also  discovered 
a  small  quantity  of  hair,  clotted  with  gore,  and  that 
hair  was  recognized  by  many  as  having  been  taken 
from  the  head  of  Elezia. 

Baxwell  protested  his  innocence.  But  the  proof 
seemed  strong  against  him,  and  he  was  regularly 
brought  to  trial.  The  result  was  his  conviction  for 
the  murder  of  his  daughter,  and  his  condemnation 
to  death. 

On  receiving  sentence,  the  unhappy  merchant 
trembled  to  excess,  and  afterwards  seemed  utterly 
overpowered  by  the  dreadful  nature  of  his  situation. 
He  continued  in  a  state  almost  of  total  insensibility 
during  the  interval  between  his  trial  and  the  day 


122  FAMOUS    CASES    OF 

appointed  for  his  execution.  On  the  morning  of  the 
latter  day,  the  jailer  came  to  announce  to  him.  for 
the  final  time,  that  the  moment  was  at  hand.  The 
merchant  was  seized  again  with  a  fearful  trembling, 
and  he  cried,  what  he  had  reiterated  to  all  who  saw 
him  in  his  confinement :  "Before  my  Maker,  I  swear 
that  I  am  guiltless  of  my  child's  death  !  " 

They  led  him  out  to  the  scaffold.  There  he  found, 
among  others,  William  Katt,  who,  it  should  have 
been  said,  was  the  most  important  witness  against 
him  at  his  trial,  having  repeated  to  the"  court  the 
threat  of  assassination  which  had  been  uttered  by 
James  Baxwell  in  his  presence  against  Elezia.  No 
sooner  did  the  doomed  merchant  behold  Katt,  than 
he  exclaimed,  at  the  very  foot  of  the  scaffold  :  "My 
friend,  in  one  minute  I  shall  be  in  eternity.  I  wish 
to  die  in  peace  with  all  men.  Give  me  your  hand — 
I  pardon  you  freely  for  the  injury  your  evidence  has 
done  to  me."  Baxwell  said  this  with  some  com- 
posure, but  the  effect  of  his  words  upon  Katt  were 
very  striking.  He  became  pale  as  death,  and  could 
not  conceal  the  depth  of  his  agitation. 

Baxwell  mounted  the  steps  of  the  gallows  slowly, 
and  gave  himself  up  to  the  hands  of  the  executioner, 
to  undergo  death  by  the  rope.  According  to  the 
ancient  custom  of  Gibraltar,  the  executioner  com- 


CIRCUMSTANTIAL    EVIDENCE.  123 

menced  his  last  duties  by  crying  in  a  loud  voice :  "Jus- 
tice is  doing!  Justice  is  done!"  He  then  placed 
the  black  bonnet  on  the  head  of  the  condemned 
merchant,  and  pulled  it  down  in  front,  so  as  to  cover 
the  eyes.  He  had  just  done  this,  when  he  was  stopped 
in  his  proceedings  by  a  loud  cry  from  the  side  of 
the  scaffold :  "  It  is  I  who  am  guilty — I  alone!  " 

This  cry  came  from  William  Katt.  The  magis- 
trates in  attendance  instantly  called  him  forward, 
and  demanded  an  explanation.  The  young  man 
avowed  that  he  had  carried  off  Elezia,  with  her  con- 
sent, to  be  his  wife,  and  that  she  was  now  residing 
not  far  off,  in  concealment.  But  to  her  he  did  not 
communicate  other  measures  which  he  had  taken, 
chiefly  to  revenge  himself  for  the  scorn  of  her  father. 
He  had  contrived  to  cut  off  a  portion  of  her  hair 
while  she  slept.  He  had  clotted  it  with  the  blood  of 
a  lamb,  and  had  also  sprinkled  in  the  same  way  a 
part  of  Elezia' s  dress,  which  he  had  purloined. 
These  articles  he  had  placed  in  the  cave,  and  there, 
also,  had  he  emitted  personally  those  cries  which 
had  borne  so  heavily  against  the  merchant.  The 
generous  pardon  which  the  merchant  had  bestowed 
on  him  at  the  scaffold,  had  awakened  (the  young 
man  said)  instantaneous  remorse-  in  his  breast,  and 
compelled  him  to  avow  the  truth. 


124  FAMOUS    CASES    OF 

This  confession  was  partly  made  at  the  scaffold, 
and  partly  afterwards.  As  soon  as  Katt  had  spoken 
out  decisively,  the  executioner  had  turned  to  James 
Baxwell,  to  take  from  him  the  insignia  of  death. 
The  merchant,  almost  unobserved,  had  sunk  down 
into  a  sitting  posture.  The  black  bonnet  was  drawn 
by  the  executioner  from  off  his  eyes  and  head.  It 
was  found  that  he  was  a  corpse  !  No  exertions  had 
the  slightest  effect  in  awakening  in  him  the  spark 
of  life.  The  physicians,  saying  all  they  could  on 
such  a  subject,  declared  that  he  had  died  from  the 
effects  of  strong  imagination. 

William  Katt  was  conducted  to  prison  amid  the 
clamors  of  the  populace,  there  to  await  judgment 
for  his  misdeeds. 

Elezia,  the  unhappy  daughter  of  an  unhappy 
father,  retired  to  a  convent  for  life  immediately  on 
learning  all  that  had  passed. 


CIRCUMSTANTIAL    EVIDENCE.  125 


XX. 

WILLIAM  RIDLEY  kept  the  Red  Cow,  a  public 
house  at  Exeter.  John  Miles  was  an  old  acquaint- 
ance of  Ridley's,  but  they  had  not  seen  each  other 
for  some  time  (Miles  living  some  distance  off),  when 
they  met  one  morning,  as  the  latter  was  going  a  little 
way  to  receive  some  money.  They  adjourned  to  the 
next  public  house,  and,  after  drinking  together, 
Ridley  told  Miles  that  he  must  go  about  the  business 
which  brought  him  from  home,  which  was  to  receive 
a  sum  of  money,  but  made  him  promise  to  wait  for 
his  coming  back.  Ridley  returned,  and  they  drank 
together  again.  Ridley  now  insisted  upon  Miles' 
accompanying  him  home  to  dinner.  They  dined, 
they  drank,  they  shook  hands,  repeated  old(  stories, 
drank  and  shook  hands  again  and  again,  as  old  ac- 
quaintances in  the  lower  class,  after  long  absences, 
usually  do ;  in  fine,  they  both  got,  at  last,  pretty 
much  in  liquor. 

The  room  they  sat  in  was  backwards,  detached  as 
it  were  from  the  house,  with  a  door  that  went  imme- 
diately into  a  yard,  and  had  communication  with  the 
street,  without  passing  through  the  house. 


126  FAMOUS    CASES     OF 

As  it  grew  late,  Mrs.  Ridley  came  into  tlie  room, 
and  not  seeing  her  husband  there,  made  inquiry 
after  him  of  Miles.  Miles  being  much  intoxicated, 
all  that  could  be  got  out  of  him  was,  that  Ridley 
went  out  into  the  yard  some  time  before,  and  had  not 
returned.  Ridley  was  called,  Ridley  was  searched 
after,  by  all  the  family ;  but  neither  answering,  nor 
being  to  be  met  with,  Miles,  as  well  as  he  was  able 
for  intoxication,  went  his  way. 

Ridley  not  coming  home  that  night,  and  some 
days  passing  without  his  returning,  or  being  Leard 
of,  suspicions  arose,  in  the  mind  of  Mrs.  Ridley,  of 
some  foul  play  against  her  husband  on  the  part  of 
Miles ;  and  these  were  not  a  little  increased  on  the 
recollection  that  her  husband  had  received  a  sum  of 
money  that  day,  and  that  Miles  had  replied  to  her 
inquiries  after  him  in  a  very  incoherent,  unintelligible 
manner,  which,  at  the  time,  she  had  attributed  to  his 
being  in  liquor. 

These  suspicions  went  abroad,  and  at  length  a  full 
belief  took  place  in  many,  that  Miles  was  actually 
the  m  urderer  of  Ridley ;  had  gone  out  with  him, 
robbed  and  murdered  him,  disposed  of  the  body,  and 
slid  back  again  to  the  room  where  they  were  drink- 
ing, unseen  by  any  one. 

The  officers  of  justice  were  sent  to  take  up  Miles, 


CIRCUMSTANTIAL    EVIDENCE.  127 

and  lie  giving,  before  the  magistrate,  a  very  unsatis- 
factory relation  of  his  parting  with  Ridley,  which  he 
affirmed  was  owing  to  his  having  been  intoxicated 
when  Ridley  went  out  of  the  room  from  him,  but 
which  the  magistrate  ascribed  to  guiltiness,  he  was 
committed  to  Exeter  jail  for  trial. 

Whilst  Miles  was  in  confinement,  a  thousand 
reports  were  spread,  tending  to  warp  the  minds  of 
the  people  against  him.  Supernatural  as  well  as 
natural  reasons  were  alleged  as  proof  of  his  guilt. 
Ridley's  house  was  declared  to  be  haunted ;  frequent 
knockings  were  heard  in  the  dead  of  the  night ;  two 
of  the  lodgers  avowed  they  had  seen  the  ghost. 
And  to  crown  the  whole,  an  old  man,  another  lodger, 
positively  affirmed,  that  once,  at  midnight,  his 
curtains  flew  open,  the  ghost  of  Ridley  appeared,  all 
bloody,  and,  with  a  piteous  look  and  hollow  voice, 
declared  he  had  been  murdered,  and  that  Miles  was 
the  murderer. 

Under  these  prepossessions  amongst  the  weak 
and  superstitious,  and  a  general  prejudice  even  in 
the  stronger  minds,  was  John  Miles  brought  to  trial 
for  the  willful  murder  of  William  Ridley.  Circum- 
stances upon  circumstances  were  deposed  against 
him  ;  and  as  it  appeared  that  Miles  was  with  Ridley 
the  whole  day,  both  before  and  after  his  receiving 


128  FAMOUS    CASES    OF 

the  money,  and  that  they  spent  the  afternoon  and 
evening  together  alone,  the  jury,  who  were  neighbors 
of  Ridley,  found  Miles  guilty,  notwithstanding  his 
protestations,  on  his  defense,  of  innocence,  and  he 
was  shortly  after  executed  at  Exeter. 

It  happened,  that,  some  time  after,  Mrs.  Ridley 
left  the  Red  Cow  to  keep  another  ale  house,  and  the 
person  who  succeeded  her,  making  several  repairs  in 
and  about  the  house,  in  emptying  the  necessary, 
which  was  at  the  end  of  a  long  dark  passage,  the 
body  of  William  Ridley  was  discovered.  In  his 
pockets  were  found  twenty  guineas,  from  whence  it 
was  evident  he  had  not  been  murdered,  as  the  rob- 
bing of  him  was  the  sole  circumstance  that  could  be 
and  was  ascribed  to  Miles  for  murdering  of  Ridley. 
The  truth  of  Miles'  assertions  and  defense  now 
became  doubly  evident ;  for  it  was  recollected  that 
the  floor  of  the  necessary  had  been  taken  up  the 
morning  before  the  death  of  Ridley,  and  that,  on  one 
side  of  the  seat,  a  couple  of  boards  had  been  left  up ; 
so  that,  being  much  in  liquor,  he  must  have  fallen 
into  the  vault,  which  was  uncommonly  deep  ;  but 
which,  unhappily,  was  not  adverted  to  at  the  time  of 
his  disappearance ! 


CIRCUMSTANTIAL    EVIDENCE.  129 


XXI. 

Two  men  were  seen  fighting  together  in  a  field. 
One  of  them  was  found,  soon  after,  lying  dead  in 
that  field.  Near  him  lay  a  pitchfork  which  had 
apparently  been  the  instrument  of  his  death.  This 
pitchfork  was  known  to  have  belonged  to  the  person 
who  had  been  seen  fighting  with  the  deceased ;  and 
he  was  known  to  have  taken  it  out  with  him  that 
morning.  Being  apprehended  and  brought  to  trial, 
and  these  circumstances  appearing  in  evidence,  and 
also  that  there  had  been,  for  some  time,  an  enmity 
between  the  parties,  there  was  little  doubt  of  the 
prisoner's  being  convicted,  although  he  strongly 
persisted  in  his  innocence  ;  but,  to  the  great  surprise 
of  the  court,  the  jury,  instead  of  bringing  in  an  im- 
mediate verdict  of  guilty,  withdrew,  and,  after  stay- 
ing out  a  considerable  time,  returned  and  informed 
the  court,  that  eleven,  out  of  the  twelve,  had  been, 
from  the  first,  for  finding  the  prisoner  guilty  ;  but 
that  one  man  would  not  concur  in  the  verdict.  Upon 
this,  the  judge  observed  to  the  dissentient  person, 
the  great  strength  of  the  circumstances,  and  asked 
him,  "how  it  was  possible,  all  circumstances  con- 


130 


FAMOUS    CASES    OF 


sidered,  for  him  to  have  any  doubts  of  the  guilt  of 
the  accused?"  But  no  arguments  that  could  be 
urged,  either  by  the  court  or  the  rest  of  the  jury, 
could  persuade  him  to  find  the  prisoner  guilty  ;  so 
that  the  rest  of  the  jury  were  at  last  obliged  to  agree 
to  the  verdict  of  acquittal. 

This  affair  remained,  for  some  time,  mysterious; 
but  it  at  length  came  out,  either  by  the  private 
acknowledgment  of  the  obstinate  juryman  to  the 
judge  who  tried  the  cause  (who  is  said  to  have  had 
the  curiosity  to  inquire  into  the  motives  of  his 
extraordinary  pertinacity),  or  by  his  confession  at 
the  point  of  death  (for  the  case  is  related  both 
ways),  that  he  himself  had  been  the  murderer! 
The  accused  had,  indeed,  had  a  scuffle  with  the  de- 
ceased, as  sworn  on  the  trial,  in  which  he  had 
dropped  his  pitchfork,  which  had  been,  soon  after, 
found  by  the  juryman,  between  whom  and  the  de- 
ceased an  accidental  quarrel  had  arisen  in  the  same 
field ;  the  deceased  having  continued  there  at  work 
after  the  departure  of  the  person  with  whom  he  had 
been  seen  to  have  the  affray ;  in  the  heat  of  which 
quarrel,  the  juryman  had  unfortunately  stabbed  him 
with  that  very  pitchfork,  and  had  then  got  away 
totally  unsuspected  ;  but  finding,  soon  after,  that  the 
other  person  had  been  apprehended,  on  suspicion  of 


CIRCUMSTANTIAL    EVIDENCE.  131 

being  the  murderer,  and  fearing,  as  the  circumstances 
appeared  so  strong  against  him,  that  he  should  be 
convicted,  although  not  guilty,  he  had  contrived  to 
get  upon  the  jury,  as  the  only  way  of  saving  the 
innocent  without  endangering  himself. 


132  FAMOUS    CASES    OF 


XXII. 

HAWKIXS  and  George  Simpson  ware  indicted 
for  robbing  the  mail,  on  the  16th  of  April,  1722. 
Hawkins,  in  his  defense,  set  up  an  alibi,  to  prove 
which,  he  called  one  "William  Fuller,  who  deposed, 
that  Hawkins  came  to  his  house  on  Sunday,  the 
15th  of  April,  and  lay  there  that  night,  and  did  not 
go  out  until  the  next  morning.  Being  asked  by  the 
court,  "By  what  token  do  you  remember  that  it  was 
the  15th*  of  April?"  he  replied,  "By  a  very  good 
token,  for  he  owed  me  a  sum  of  money  for  horse 
hire,  and  on  Tuesday,  the  10th  of  April,  he  called 
upon  me  and  paid  me  in  full,  and  I  gave  him  a 
receipt ;  and  I  very  well  remember,  that  he  lay  at 
my  house  the  Sunday  night  following."  The  receipt 
was  now  produced.  "April  the  10th,  1722.  Re- 
ceived of  Mr.  John  Hawkins,  the  sum  of  one  pound 
ten  shillings,  in  full  of  all  accounts,  per  me,  William 
Fuller."  Upon  inspecting  the  receipt,  the  court 
asked  Fuller  who  wrote  it.  He  replied,  "Hawkins 
wrote  the  body  of  it,  and  I  signed  it." 

*  The  robbery  was  committed  about  two  o'clock  on  the  morn- 
ing of  the  16th. 


CIRCUMSTANTIAL  EVIDENCE.  133 

Court.     "Did  you  see  Mm  write  it  \ " 

Fuller.     "Yes." 

Court.  "And  how  iong  was  it  after  lie  wrote 
it,  before  you  signed  ?  " 

Fullefy  "  I  signed  it  immediately,  without  going 
from  the  table." 

Court.  "How  many  standishes  do  you  keep  in 
the  house  ?" 

Fuller.     "Standishes?" 

Court.  "Aye,  standishes  •  it  is  a  plain 
question." 

Fuller.  "  My  Lord,  but  one  ;  and  that  is  enough 
for  the  little  handwriting  we  have  to  do." 

Court.  "Then  you  signed  the  receipt  with  the 
same  ink  that  Hawkins  wrote  the  body  of  it  with  ?" 

Fuller.     ' '  For  certain. " 

Court.  "Officer,  hand  the  receipt  to  the  jury. 
Gentlemen,  you  will  see  that  the  body  of  the  note  is 
written  with  one  kind  of  ink,  and  the  name  at  the 
bottom  with  another  very  different ;  and  yet  this 
witness  has  sworn,  that  they  were  both  written  with 
the  same  ink,  and  one  immediately  after  the  other. 
You  will  judge  what  credit  is  to  be  given  to  his 
evidence !" 

Thus,  the  authenticity  of  the  receipt,  and  the 
credit  of  the  witness,  were  overthrown  by  the 


134  FAMOUS    CASES    OF 

sagacity  of  the  court !  But  While  the  judge,  Lord 
Chief  Baron  MONTAGUE  was  summing  up  the 
evidence,  he  was  interrupted  by  the  following 
occurrence :  The  person  who  reports  the  trial  was 
then  taking  notes  of  the  proceedings ;  his  ink,  as  it 
happened,  was  very  bad,  being  thick  at  the  bottom, 
and  thin  and  waterish  at  the  top,  so  that/  accordingly 
as  he  dipped  the  pen,  the  writing  appeared  very  pale 
or  pretty  black.  This  circumstance  being  remarked 
by  some  gentlemen  present,  they  handed  the  book  to 
the  jury  ;  the  judge  perceiving  them  very  attentively 
inspecting  it,  called  to  them:  "Gentlemen,  what  are 
you  doing?  What  book  is  that?"  They  told  him 
that  it  was  the  writer's  book,  and  that  they  were 
observing  how  the  same  ink  appeared  pale  in  one 
place,  and  black  in  another.  The  judge  then  told 
them — "You  ought  not,  gentlemen  to  take  notice  of 
any  thing  but  what  is  produced  in  evidence"  ;  and, 
turning  to  the  writer,  demanded — "what  he  meant 
by  showing  that  book  to  the  jury?"  And  being 
informed  by  the  writer  that  it  was  taken  from  him, 
he  inquired  "who  took  it,  and  who  handed  it  to  the 
jury?"  .  But  this  the  writer  could  not  say,  as  the 
gentlemen  near  him  were  all  strangers  to  him,  and 
he  had  not  taken  any  particular  notice  of  the  person 
who  took  his  book. 


CIRCUMSTANTIAL    EVIDENCE.  135 

That  a  jury  ought  not  to  take  notice  of  any  thing 
but  what  is  produced  in  evidence,  has  been  said  to  be 
law ;  but,  on  the  contrary,  it  has  been  held,  and 
surely  very  properly,  that  a  juryman  may  find  from 
his  own  knowledge  ;  indeed,  what  evidence  can  con- 
vince a  person  that  is  which  he  knows  not  to  be  ? 

Hawkins  and  Simpson  were  convicted  and  exe- 
cuted ;  indeed,  the  evidence  against  them  was  very 
strong  ;  but,  had  the  fate  of  Hawkins  depended  upon 
the  single  testimony  of  Fuller,  he  would,  but  for  this 
occurrence,  have  fallen  a  sacrifice  to  the  acuteness  of 
the  judge !  who  appears  to  have  been  much  dis- 
pleased at  the  accidental  confutation  of  his  remarks 
on  the  receipt,  although  it  was  an  accident  in  favor  of 
life  ;  and,  had  it  not  been  in  a  case  where  other 
evidence  was  so  strong  against  the  accused,  it  must 
have  been  looked  upon  as  the  special  interposition  of 
Providence. 


136  FAMOUS    CASES    OF 


XXIII. 

A  MAN-  was  tried  for,  and  convicted  of,  the 
murder  of  his  own  father.  The  evidence  against  him 
was  merely  circumstantial,  and  the  principal  witness 
was  his  sister.  She  proved  that  her  father  possessed 
a  small  income,  which,  with  his  industry,  enabled 
him  to  live  with  comfort ;  that  her  brother,  the 
prisoner,  who  was  his  heir  at  law,  had  long  expressed 
a  great  desire  to  come  into  the  possession  of  his 
father's  effects  ;  and  that  he  had  long  behaved  in  a 
very  undutiful  manner  to  him,  wishing,  as  the 
witness  believed,  to  put  a  period  to  his  existence  by 
uneasiness  and  vexation ;  that,  on  the  evening  the 
murder  was  committed,  the  deceased  went  a  small 
distance  from  the  house,  to  milk  a  cow  he  had  for 
some  time  kept,  and  that  the  witness  also  went  out 
to  spend  the  evening  and  to  sleep,  leaving  only  her 
brother  in  the  house  ;  that,  returning  home  early  in 
the  morning,  and  finding  that  her  father  and  brother 
were  absent,  she  was  much  alarmed,  and  sent  for 
some  neighbors  to  consult  with  them,  and  to  receive 
advice  what  should  be  done  ;  that,  in  company  with 


CIRCUMSTANTIAL    EVIDENCE.  137 

these  neighbors,  she  went  to  the  hovel  in  which  her 
father  was  accustomed  to  milk  the  cow,  where  they 
found  him  murdered  in  an  inhuman  manner,  his 
head  being  almost  beat  to  pieces ;  that  a  suspicion 
immediately  falling  on  her  brother,  and  there  being 
then  some  snow  upon  the  ground,  in  which  the  foot- 
steps of  a  human  being,  to  and  from  the  hovel,  were 
observed,  it  was  agreed  to  take  one  of  the  brother5  s 
shoes,  and  to  measure  therewith  the  impressions  in 
the  snow  ;  this  was  done,  and  there  did  not  remain  a 
doubt  but  that  the  impressions  were  made  with  his 
shoes.  Thus  confirmed  in  their  suspicions,  they 
then  immediately  went  to  the  prisoner's  room,  and 
after  a  diligent  search,  they  found  a  hammer,  in  the 
corner  of  a  private  drawer,  with  several  spots  of 
blood  upon  it,  and  with  a  small  splinter  of  bone,  and 
some  brains  in  a  crack  which  they  discovered  in  the 
handle.  The  circumstances  of  finding  the  deceased 
and  the  hammer,  as  described  by  the  former  witness, 
were  fully  proved  by  the  neighbors  whom  she  had 
called  ;  and  upon  this  evidence  the  prisoner  was  con- 
victed and  suffered  death,  but  denied  the  fact  to  the 
last.  About  four  years  after,  the  witness  was  ex- 
tremely ill,  and  understanding  that  there  were  no 
possible  hopes  of  her  recovery,  she  confessed  that  her 
father  and  brother  having  offended  her,  she  was 


i38  FAMOUS    CASES    OF 

determined  they  should  both  die  ;  and,  accordingly, 
when  the  former  went  to  milk  the  cow,  she  followed 
him  with  her  brother's  hammer,  and  in  his  shoes; 
that  she  beat  out  her  father's  brains  with  the  hammer, 
and  laid  it  where  it  was  afterwards  found  ;  that  she 
then  went  from  home  to  give  a  better  color  to  this 
wicked  business,  and  that  her  brother  was  perfectly 
innocent  of  the  crime  for  which  he  had  suffered. 
She  was  immediately  taken  into  custody,  but  died 
before  she  could  be  brought  to  trial. 


CIRCUMSTANTIAL    EVIDENCE  139 


XXIV. 

JOHIST  STEINGER  was  tried  at  the  Lent  assizes,  held 
at  Kingston,  in  the  county  of  Surry,  in  the  year 
1765,  before  the  late  Lord  Chief  Baron  SMYTHE,  for 
the  murder  of  his  wife,  and  found  guilty.  The  trial 
being  on  the  Saturday,  he  was  ordered  for  execution 
on  the  Monday  following.  The  case  was  thus : 
Stringer,  a  man  in  low  circumstances,  had  brought 
his  wife,  who  had  long  been  in  an  ill  state  of  health, 
from  London  to  Lambeth,  for  the  benefit  of  the  air ; 
here  they  lived  for  some  time  ;  generally  in  great 
harmony  ;  but  not  without  those  little  quarrels  and 
scuffles,  so  common  with  persons  in  their  rank  of  life. 
Upon  the  woman's  death,  some  of  the  neighboring 
females,  who  had  been  occasionally  witnesses  to 
these  litttle  accidental  bickerings  between  the  hus- 
band and  wife,  took  it  in  their  heads  that  he  had 
murdered  her,  notwithstanding  she  had  never  been 
heard  to  make  the  least  complaint  of  her  husband 
during  the  course  of  her  illness ;  and  the  man  was 
brought  to  trial  in  consequence. 

Some  trifling  evidence   being  given  of  the  little 


'140  FAMOUS    CASES    OF 

differences  that  had  arisen  between  them ;  and  the 
opinion  of  a  young  surgeon,  that  some  appearances 
on  the  corpse  were  somewhat  the  appearances  of  a 
mortification,  occasioned  by  bruises ;  Stringer,  on 
these  slight  circumstances,  was  convicted,  and  left 
for  execution ! 

Mr.  Carsan,  a  surgeon  of  great  experience  in  the 
neighborhood,  had,  on  the  report  of  the  murder, 
from  mere  curiosity,  examined  the  body,  and  was  so 
clear  thai  there  were  no  marks  of  violence  thereon, 
that  he  had  not  the  least  apprehension  of  the  possi- 
bility of  Stringer's  being  convicted :  but  hearing  of 
the  conviction,  and  confident  of  the  innocence  of  the 
unhappy  man,  and  actuated  by  the  love  of  justice 
and  humanity,  he  instantly,  on  the  Sunday,  waited 
on,  and  represented  the  case  to  the  Archbishop  of 
Canterbury ;  his  grace  gave  Mr.  Carsan  a  letter  to 
Baron  SMYTHE,  who,  convinced  by  his  statement  of 
the  matter,  that  himself  and  the  jury  had  been  too 
precipitate  in  forming  an  opinion  of  the  guilt  of 
Stringer,  granted  an  immediate  respite  ;  which  gave 
Mr.  Carsan  an  opportunity  of  laying  the  whole  case 
before  his  majesty,  and  he  had  the  satisfaction  of 
saving  an  innocent  man  from  an  undeserved  and 
ignominious  death. 


CIRCUMSTANTIAL    EVIDENCE.  141 


XXV. 

* 

Lsr  the  year  1764,  a  citizen  of  Liege  was  found 
dead  in  his  chamber,  shot  in  the  head.  Close  to  him 
lay  a  discharged  pistol,  with  which  he  had  appar- 
ently been  his  own  executioner.  Firearms  are  the 
chief  manufacture  of  that  city ;  and  so  common  is 
the  use  of  pistols  at  that  place,  that  every  peasant, 
who  brings  his  goods  to  the  markets  there,  is  seen 
armed  with  them ;  so  that  the  circumstance  of  the 
pistol  did  not,  at  first,  meet  with  so  much  attention 
as  it  might  have  done  in  places  where  those  weapons 
are  not  in  such  common  use.  But,  upon  the 
researches  of  the  proper  officer  of  that  city,  whose 
duty,  like  that  of  our  coroner,  it  is  to  inquire  into 
all  the  circumstances  of  accidental  deaths,  it  ap- 
peared that  the  ball  which  was  found  lodged  in  the 
head  of  the  deceased  could  never,  from  its  size, 
have  been  fired  out  of  the  pistol  which  lay  by  him  ; 
thus  it  was  clear  that  he  had  been  murdered ;  nor 
were  they  long  in  deciding  who  was  the  murderer. 
A  girl,  of  about  sixteen,  the  niece  of  the  deceased, 
had  been  brought  up  by  him,  and  he  had  been 


142  FAMOUS    CASES    OF 

always  supposed  to  have  intended  to  leave  her  his 
effects,  which  were  something  considerable ;  but  the 
girl  had  then  lately  listened  HI  the  addresses  of  a 
young  man  whom  the  uncle  did  not  approve  of,  and 
he  had,  upon  that  occasion,  several  times  threatened 
to  alter  his  will,  and  leave  his  fortune  to  some  other 
of  his  relations.  Upon  these,  and  some  other  con- 
current circumstances,  such  as  having  been  heard  to 
wish  her  uncle's  death,  &c.,  the  girl  was  committed 
to  prison. 

The  torturing  a  supposed  criminal,  in  order  to 
force  confession,  is  certainly  the  most  cruel  and 
absurd  idea  that  ever  entered  into  the  head  of  a 
legislator.  This  being  observed  by  the  writer  of  this 
narrative,  who  was  then  at  Liege,  to  a  magistrate  of 
that  place,  on  this  very  occasion,  his  defense  was,— 
"We  never  condemn  to  the  torture  but  upon  circum- 
stances on  which  you  in  England  would  convict ;  so 
that  the  innocent  has  really  a  better  chance  to  escape 
here  than  with  you."  But,  until  it  is  proved  that 
pain  has  a  greater  tendency  to  make  a  person  speak 
truth  than  falsehood,  this  reasoning  seems  to  have 
little  weight. 

This  unhappy  girl  was,  therefore,  horridly  and 
repeatedly  tortured ;  but  still  persevering  in  assert- 
ing her  innocence,  she  at  last  escaped  with  life ; — if 


CIRCUMSTANTIAL    EVIDENCE.  143 

it  could  be  called  an  escape,  when  it  was  supposed 
she  would  never  again  enjoy  health  or  limbs,  from 
the  effects  of  the  torture. 

The  writer  has  since  learned,  that,  some  years 
afterwards,  her  innocence  became  manifest,  by  the 
confession  of  the  real  assassins,  who,  being  sen- 
tenced to  the  wheel  for  other  crimes,  confessed 
themselves  the  authors  of  this  of  which  the  girl  was 
suspected ;  and  that,  several  pistols  having  been 
discharged  at  the  deceased,  they  had,  intending  that 
it  should  appear  a  suicide,  laid  a  pistol  near  him, 
without  adverting  that  it  was  not  the  same  by  which 
he  fell. 


144  FAMOUS    CASES    OF 


XXVI. 

JONATHAN  BRADFOBD  kept  an  inn,  in  Oxford- 
shire, on  the  London  road  to  Oxford.  He  bore  a 
very  unexceptionable  character.  Mr.  Hayes,  a  gen- 
tleman of  fortune,  being  on  his  way  to  Oxford,  on  a 
visit  to  a  relation,  put  up  at  Bradford's.  He  there 
joined  company  with  two  gentlemen,  with  whom  he 
supped,  and,  in  conversation,  unguardedly  men- 
tioned that  he  had  then  about  him  a  sum  of  money. 
In  due  time  they  retired  to  their  respective  chambers  ; 
the  gentlemen  to  a  two-bedded  room,  leaving,  as  is 
customary  with  many,  a  candle  burning  in  the 
chimney  corner.  Some  hours  after  they  were  in  bed, 
one  of  the  gentlemen,  being  awake,  thought  he  heard 
a  deep  groan  in  an  adjoining  chamber ;  and  this 
being  repeated,  he  softly  awaked  his  friend.  They 
listened  together,  and  the  groans  increasing,  as  of 
one  dying  and  in  pain,  they  both  instantly  arose,  and 
proceeded  silently  to  the  door  of  the  next  chamber, 
whence  they  had  heard^  the  groans,  and,  the  door 
being  ajar,  saw  a  light  in  the  room.  They  entered, 
but  it  is  impossible  to  paint  their  consternation,  on 


CIRCUMSTANTIAL  EVIDENCE.  145 

perceiving  a  person  weltering  in  his  blood  in  the  bed, 
and  a  man  standing  over  him  with  a  dark  lantern  in 
one  hand,  and  a  knife  in  the  other !  The  man 
seemed  as  petrified  as  themselves,  but  his  terror 
carried  with  it  all  the  terror  of  guilt.  The  gentlemen 
soon  discovered  that  the  murdered  person  was  the  \ 
stranger  with  whom  they  had  that  night  supped,  and 
that  the  man  who  was  standing  over  him  was  their 
host.  They  seized  Bradford  directly,  disarmed  him 
of  his  knife,  and  charged  him  with  being  the  mur- 
derer. He  assumed,  by  this  time,  the  air  of  inno- 
cence, positively  denied  the  crime,  and  asserted  that 
he  came  there  with  the  same  humane  intentions  as 
themselves ;  for  that,  hearing  a  noise,  which  was 
succeeded  by  a  groaning,  he  got  out  of  bed,  struck  a 
light,  armed  himself  with  a  knife  for  his  defense, 
and  was  but  that  minute  entered  the  room  before 
them.  These  assertions  were  of  little  avail ;  he  was 
kept  in  close  custody  till  the  morning,  and  then 
taken  before  a  neighboring  justice  of  the  peace. 
Bradford  still  denied  the  murder,  but,  nevertheless, 
with  such  apparent  indications  of  guilt,  that  the 
justice  hesitated  not  to  make  use  of  this  most  extra- 
ordinary expression,  on  writing  out  his  mittimus : 
"Mr.  Bradford,  either  you  or  myself  committed  this 

murder." 
10 


146  FAMOUS    CASES    OF 

This  extraordinary  affair  was  the  conversation  of 
the  whole  country.  Bradford  was  tried  and  con- 
demned, over  and  over  again,  in  every  company.  In 
the  midst  of  all  this  predetermination,  came  on  the 
assizes  at  Oxford.  Bradford  was  brought  to  trial ; 
he  pleaded — not  guilty.  Nothing  could  be  stronger 
than  the  evidence  of  the  two  gentlemen.  They 
testified  to  the  finding  Mr.  Hayes  murdered  in  his 
bed  ;  Bradford  at  the  side  of  the  body  with  a  light 
and  a  knife  ;  that  knife,  and  the  hand  which  held  it, 
bloody ;  that,  on  their  entering  the  room,  he  betrayed 
all  the  signs  of  a  guilty  man  ;  and  that,  but  a  few 
moments  preceding,  they  had  heard  the  groans  of 
the  deceased. 

Bradford's  defense  on  his  trial  was  the  same  as 
before  the  gentlemen :  he  had  heard  a  noise ;  he 
suspected  some  villany  was  transacting ;  he  struck  a 
light ;  he  snatched  the  knife,  the  only  weapon  near 
him,  to  defend  himself ;  and  the  terrors  he  discovered 
were  merely  the  terrors  of  humanity,  the  natural 
effects  of  innocence  as  well  as  guilt,  on  beholding 
such  a  horrid  scene. 

This  defense,  however,  could  not  be  considered 
but  as  weak,  contrasted  with  the  several  powerful 
circumstances  against  him.  Never  was  circumstan- 
tial evidence  more  strong  !  There  was  little  need  of 


CIRCUMSTANTIAL    EVIDENCE.  147 

the  prejudice  of  the  county  against  the  murderer  to 
strengthen  it ;  there  was  little  need  left  of  comment 
from  the  judge,  in  summing  up  the  evidence;  no 
room  appeared  for  extenuation ;  and  the  jury 
brought  in  the  prisoner  guilty,  even  without  going 
out  of  their  box. 

Bradford  was  executed  shortly  after,  still  de- 
claring that  he  was  not  the  murderer,  nor  privy  to 
the  murder  of  Mr.  Hayes ;  but  he  died  disbelieved 
by  all. 

Yet  were  these  assertions  not  untrue  !  The  mur- 
der was  actually  committed  by  Mr.  Hayes'  footman  ; 
who,  immediately  on  stabbing  his  master,  rifled  his 
breeches  of  his  money,  gold  watch,  and  snuff-box, 
and  escaped  back  to  his  own  room ;  which  could 
have  been,  from  the  after  circumstances,  scarcely 
two  seconds  before  Bradford's  entering  the  unfor- 
tunate gentleman's  chamber.  The  world  owes  this 
knowledge  to  a  remorse  of  conscience  in  the  footman 
(eighteen  months  after  the  execution  of  Bradford),  on 
a  bed  of  sickness.  It  was  a  death-bed  repentance, 
and  by  that  death  the  law  lost  its  victim. 

It  is  much  to  be  wished  that  this  account  could 
close  hertipbut  it  cannot!  Bradford,  though  inno- 
cent, and  not  privy  to  the  murder,  was,  nevertheless, 
the  murderer  in  design  :  he  had  heard,  as  well  as  the 


148  FAMOUS    CASES    OF 

footman,  what  Mr.  Hayes  declared  at  supper,  as  to 
the  having  a  sum  of  money  about  him ;  and  he  went 
to  the  chamber  of  the  deceased  with  the  same 
diabolical  intentions  as  the  servant.  He  was  struck 
with  amazement ;  he  could  not  believe  his  senses ; 
and,  in  turning  back  the  bed-clothes,  to  assure  him- 
self of  the  fact,  he,  in  his  agitation,  dropped  his 
knife  on  the  bleeding  body,  by  which  both  his  hands 
and  the  knife  became  bloody.  These  circumstances 
Bradford  acknowledged  to  the  clergyman  who  at- 
tended him  after  his  sentence. 


CIRCUMSTANTIAL    EVIDENCE.  149 


XXVII. 

THE  most  remarkable  murder  trial  which  Boston 
has  seen  since  the  famous  Webster-Parkman  case, 
was  that  which  resulted  in  a  verdict  that  Leavitt 
Alley  was  not  guilty  of  the  murder  of  Abijah  Ellis. 
There  is  at  many  points  a  wonderful  parallelism  in 
the  two  trials.  The  victims  were  both  men  of  wealth, 
and  of  strikingly  similar  habits  ;  both  were  hard  cred- 
itors, and  the  incentive  alleged  in  each  case  was  the 
inability  of  the  murderer  to  meet  a  certain  payment. 
The  horrible  circumstances  attending  the  finding  of 
Ellis' s  body — just  after  the  mysterious  shooting  of 
Charles  Lane,  a  wealthy  merchant,  in  his  own  door- 
way— and  the  consequent  excitement,  equaled  in  in- 
tensity only  by  the  discovery  of  the  charred  remains 
of  Dr.  Parkman,  a  score  of  years  before,  will  serve 
to  recall  the  salient  features  of  the  case. 

Some  workmen  near  the  Cambridge  gas  works, 
discovered  two  barrels,  containing  the  mutilated 
body,  floating  in  the  Charles  river.  They  were 
packed  with  horse  manure  and  shavings,  and  in  one 
of  the  barrels  was  discovered  a  piece  of  brown  paper 


FAMOUS    CASES    OF 


with  the  name  of  M.  Schouler,  a  billiard  manufac- 
turer. Investigation  proved  that  a  teamster,  Leavitt 
Alley,  was  in  the  habit  of  removing  these  shavings 
to  his  stable.  Following  the  clew  to  the  stable,  it 
was  found  that  a  dry  manure  heap  had  been  recently 
disturbed  ;  blood  was  also  found  upon  some  boards 
near  by. 

It  was  proved  that  on  the  previous  morning  Alley 
had  started  from  his  stable  with  four  barrels,  and  a 
teamster,  in  jumping  from  the  wagon,  had  ascertained 
that  two  of  them  were  heavy.  Two  of  the  barrels 
were  not  satisfactorily  accounted  for,  while  a  man 
testified  to  seeing  the  team  and  barrels  with  a  man 
strongly  resembling  Alley  upon  the  mill-dam,  where 
they  were  supposed  to  have  been  thrown  into  the 
river.  Alley  was  owing  Ellis  some  two  hundred  dol- 
lars, was  in  great  need  of  money,  and  Ellis  was  known 
to  have  been  searching  for  the  suspected  man  on  the 
night  when  the  murder  was  probably  committed.  A 
new  axe  which  Alley  had  purchased  a  short  time 
before  was  missing,  and  its  very  existence  was  denied. 
In  addition,  blood  stains  were  found  upon  the  cloth- 
ing worn  by  Alley,  which  were  identified  by  experts 
as  human  gore  ;  and  a  woman  had  heard  strange 
noises,  like  the  rolling  of  barrels,  in  the  stable  on  the 
fatal  night.  Lastly,  it  was  shown  that  Alley  had 


CIRCUMSTANTIAL    EVIDENCE.  151 

been  abundantly  provided  with  money  after  the  death 
of  Ellis. 

The  testimony  for  the  government  was  entirely  cir- 
cumstantial. It  was  not  claimed  that  any  human  eye 
saw,  or  human  ear  heard,  the  doing  of  the  atrocious 
deed.  The  case  had  been  carefully  worked  up  and 
prepared  by  the  best  detective  skill  and  professional 
ability  that  could  be  brought  to  bear  upon  it,  and,  as 
the  facts  already  given  were  clearly  brought  out,  the 
outlook  for  the  prisoner  was  certainly  a  dark  one  as 
compared  with  the  Webster  trial,  when  the  whole  case 
turned  upon  the  identification  by  a  dentist  of  a  gold 
plate.  The  stains  of  blood  found  in  the  prisoner's 
stable  and  on  his  clothing  were  submitted  to  chemical 
tests,  by  skillful  experts,  and  then  examined  through 
a  microscope,  and  pronounced  by  them  to  be  not  only 
human  blood,  but  that  of  the  murdered  man.  A 
physician  testified,  from  an  examination  of  the  de- 
ceased's  stomach,  that  he  must  have  met  his  death 
between  six  and  nine  o'clock  on  the  fatal  evening  ; 
and  altogether  the  case  against  Alley  was  about  as 
strong  a  one  as  circumstantial  evidence  ever  presents. 
The  prisoner's  counsel,  however,  appeared  to  fully 
appreciate  the  situation,  and  developed  an  unexpected 
strength.  To  controvert  the  theory  that  Alley  had 
committed  the  murder  in  a  quarrel,  they  introduced 


i5  2  FAMOUS    CASES    OF 

evidence  from  prominent  citizens  of  New  Hampshire 
that  he  had  always  been  a  quiet  and  peaceable  man, 
with  a  reputation  for  honesty  and  integrity  above  re- 
proach, in  the  face  of.  which  the  commission  of  so 
horrible  a  crime  seemed  most  unlikely.  The  prosecu- 
tion had  claimed  that  Alley  was  in  debt  to  Ellis,  and 
without  money  to  meet  an  engagement  which  fell  due 
at  the  time  of  the  murder ;  but  the  defense  clearly 
proved  that  the  prisoner  possessed  considerable  prop- 
erty in  New  Hampshire  and  had  money  in  a  bank. 

A  strong  point  against  the  accused  had  been  the 
fact  that,  though  he  had  not  much  ready  money 
on  hand  just  before  the  murder,  immediately  after 
it  he  had  considerable  in  Ms  possession.  But  the 
defense  disposed  of  this  by  evidence  that  a  loan  of 
one  hundred  and  twenty-five  dollars  was  repaid  by 
his  son  the  evening  before  the  murder.  There  re- 
mained the  evidence  of  the  blood,  which  the  prose- 
cution had  professed  to  prove  was  not  only  human 
blood,  but  that  of  the  victim  himself.  But  the 
defense  introduced  experts,  who  not  only  denied 
that  the  blood  in  question  was  that  of  a  human  being, 
but  showed  that  the  best  scientific  authorities  agree 
that  the  difference  between  human  and  animal  blood 
cannot  be  determined  after  it  has  dried,  as  was  the 
fact  in  this  case. 


CIRCUMSTANTIAL    EVIDENCE.  153 

On  the  whole,  therefore,  the  scientific  testimony 
not  only  served  to  confuse  the  jury,  but  positively 
helped  the  prisoner's  case.  The  defense  then  pro- 
ceeded to  -still  further  dissipate  the  web  of  circum- 
stantial evidence  which  had  been  woven  aronnd 
Alley  by  satisfactorily  accounting  for  every  hour 
of  his  time  from  the  moment  Ellis  disappeared  till 
the  time  his  body  was  discovered. 

When  the  defense  rested  their  case,  public  opinion 
and  expectation  had  naturally,  and  justly,  very 
much  changed,  and  the  probability  of  his  convic- 
tion had  practically  disappeared.  No  one  had  seen 
the  murder,  and  the  natural  indisposition  to  con- 
demn a  man  on  circumstantial  evidence  alone  was 
strengthened  by  the  fact  that  much  of  what  appeared 
strongest  in  this  evidence  had  been  overthrown  by 
the  defense.  These  considerations,  joined  with 
the  traditional  principle  of  holding  every  man  in- 
nocent till  his  guilt  is  proved  beyond  the  shadow 
of  a  doubt,  resulted  in  a  verdict  of  not  guilty — 
a  decision  of  the  case  with  which  the  public  will 
not  be  inclined  to  find  fault. 


00 

so 


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